By Paul Mann, Cambridge ON

     Crawford by her Litigation Guardian et al v. Penney et al handed down January 15th, 2003. Plaintiffs' counsel, Richard J. Sommers Q.C. and Robert Roth. (OTLA Members).

     In this particular medical malpractice case which was a case that took years to get to trial, mainly because of the defence's recalcitrance and time honoured CMPA strategy in tactics of delay, delay, delay, involved a young girl at birth, Melissa Crawford, who was 19 years of age at the time of trial, being born on the 27th of December, 1983. She sustained catastrophic injuries after her head was delivered, her shoulders became impacted in the birth canal resulting in deprivation of oxygen, causing permanent disabling brain injury as a result of hypoxic ischemic encephalopathy. It was found that the HIE was caused by shoulder dystocia, the obvious cause of which was excessive birth weight which was caused by untreated diabetes in pregnancy.

     Melissa further suffered from cerebral palsy. The brain injury was due to asphyxia just prior to birth which was described as acute, near total in character. She further suffered right brachial plexus injury, a fractured right clavicle.

     It was found that the doctors were negligent after a 57-day trial with voluminous experts, numerous extracts from medical texts, articles and submissions of counsel. (It should be noted that this case is now under appeal by the CMPA - what's new? - because of the absolutely tremendous result afforded to the Crawford family by Plaintiffs' counsel.)

     Literally every defence in the book was raised by the defence including, but not limited to, duty of care, standard of care, causation, conflicting expert evidence regarding standard of care and how the Courts deal with it, the locality rules, required care, loss of enjoyment of life, calculation of damages, life expectancy, Melissa's future loss of income/lost years, future care costs, nursing care costs, housing for the afflicted child (woman), Family Law Act claims.

     I commend this case to anyone doing a medical malpractice case for infants as it is a compilation of some of the best work that I have seen in my years of practice distilled down into about 120 pages of Reasons.

     At p. 68 of the case handed down by Mr. Justice Powers, the duty of care was referred to under general propositions of law and the case of Cooper v. Hobart (2002) 1 W.W.R. 221, Edwards v. The Law Society of Upper Canada (2001), 206 D.L.R.(4d) 211, outlining the approach to be taken by Courts in assessing whether a Defendant owes a duty of care to the Plaintiff. The Supreme Court considered and modified the test for duty of care set out by the House of Lords in Anns v. Merton, London Borough Council (1978), A.C. 728.

     The first stage of the test requires the Court to consider whether the harm that occurred was reasonably foreseeable and whether there was a sufficient proximity to establish a duty of care. Once a duty of care has been established, the second stage of the test requires a Court to consider whether there is any residual policy considerations justifying denying liability. Residual policy considerations can include the need to balance public and private interests, the effect of such decisions on the public, the deference that should be accorded to policy decisions in determining liability and the impact of this decision on the legal system.

     In this particular case, it was found that there was a duty of care of the physicians as was adequately summarized in the Norberg v. Wynrib case (1992), 2 S.C.R. 226 at 270-271, where it was held “The relationship of physician and patient...can be viewed as a creature of contract with the physician's failure to fulfill his or her obligations giving rise to an action for breach of contract. It undoubtedly gives rise to a duty of care, the breach of which constitutes the tort of negligence...but perhaps the most fundamental characteristic of the doctor/patient relationship is its fiduciary nature. All of the authorities agree that the relationship of physician to patient also falls into that special category of relationship which the law calls “fiduciary””.

     With respect to causation, it was generally conceded that the Court must address the issue of causation and make its findings of fact dealing with the cause of the injury assuming that such findings can be made. If there is no causation, there can be no liability even if there has been a breach of standard of care (see Snell v. Farrell (1990), 2 S.C.R. 311) where the Supreme Court of Canada examined the principles concerning causation and invoked the “reverse onus provisions”.

     “Causation is an expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation to the latter out of pocket of the former”.

     Lawson v. Laferriere (1991), 1 S.C.R. 541, sets out a pp. 608 and 609 in the Supreme Court of Canada the elements of determining causation in medical malpractice cases, and I commend this to you for your reading and it also may be found to be summarized at p. 72 of the Crawford case.

     The standard of care that the court must apply in medical malpractice cases is not one of perfection; but rather is to require the physician to conduct him or herself within a reasonable degree of skill and knowledge. This includes skill and care with respect to diagnosis, and treatment of the patient's medical condition. It is an objective standard and varies according to the level of the experience attained by the physicians whose performance is under consideration. As stated in Picard - legal liability of doctors and hospitals in Canada, 2d, the principle was expressed succinctly in one case as follows: “the degree of care required by the law is care commensurate with the potential danger”.

     As stated in the Queen v. Cote (1976), 1 S.C.R. 595, “it is not necessary that one foresee the “precise constellation of events”. It is enough to fix liability if one can foresee in a general way the class or character of the injury which occurred”.

     This has been affirmed by the School Division of Assiniboine South No. 3 v. Greater Winnipeg Gas Company Limited, 1971 4 W.W.R. 746 and in the Supreme Court of Canada case of Ter Neuzen v. Korn, (1995), 3 S.C.R. 674.

     In other words, it was held “the information upon which a Judgment or decision is reached must be as complete as is reasonably available and possible in the circumstances”.

     This case also deals with the duty to refer a patient to another physician in a timely fashion where the attending physician cannot make a diagnosis or where he or she has a reasonable doubt concerning the correctness of the diagnosis - in coming to a diagnosis, the physician must conduct a thorough patient history and conduct the necessary tests. The case goes on to state that there is no absolute test to ascertain when a doctor should refer or consult, but it is indicated when (1) the doctor is unable to diagnose the patient's condition; (2) the patient is not responding to the treatment given; (3) the patient needs treatment which the doctor is not competent to give; (4) the doctor has the duty to guard against his or her own experience; or (5) the doctor cannot continue to treat a patient (for instance, while on vacation).

     This duty involves a matter of judgment, however, the Trial Judge is not precluded from examining the grounds upon which the judgment is exercised.

     This case is an absolute goldmine and I think that everybody should thank Dick Sommers and Bob Roth with respect to “the goldmine” of information, summary of events, and the highlighting of the various standard defences used by the CMPA in defending these cases.

     I commend it to all of you for your consideration and reading.

     Parenthetically I might add that the future health care costs award in this case by way of verdict is probably the highest award in Canadian history.

     I look forward to your comments, your updates and your cases.