Lapointe v. Hôpital Le Gardeur

Lapointe v. Hôpital Le Gardeur
Collection
Supreme Court Judgments
Date
1992-02-13
Report
[1992] 1 SCR 351
Case number
21697
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret
On appeal from
Quebec
Subjects
Appeal
Professional law
Torts
Notes
SCC Case Information: 21697
Decision Content
Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351
Dr. Maurice Chevrette Appellant
v.
Gabrielle Imbeault‑Lapointe and Paul‑Émile Lapointe,
in his personal capacity and as tutor
to his minor daughter Nancy Lapointe Respondents
Indexed as: Lapointe v. Hôpital Le Gardeur
File No.: 21697.
1991: October 3; 1992: February 13.
Present: Lamer C.J. and L'Heureux‑Dubé, Sopinka, Gonthier and Cory JJ.
on appeal from the court of appeal for quebec
Civil responsibility ‑‑ Medical malpractice ‑‑ Child severing artery and suffering extensive blood loss ‑‑ Doctor at general hospital arranging to transfer child to paediatric hospital ‑‑ Child later suffering cardio‑respiratory arrest resulting in brain damage ‑‑ Trial judge finding doctor not negligent ‑‑ Court of Appeal reversing judgment ‑‑ Whether Court of Appeal erred in overturning findings of fact.
Physicians and surgeons ‑‑ Medical malpractice ‑‑ Child severing artery and suffering extensive blood loss ‑‑ Doctor at general hospital arranging to transfer child to paediatric hospital ‑‑ Child later suffering cardio‑respiratory arrest resulting in brain damage ‑‑ Trial judge finding doctor not negligent ‑‑ Court of Appeal reversing judgment ‑‑ Whether Court of Appeal erred in overturning findings of fact.
Appeal ‑‑ Role of appellate court ‑‑ Trial judge finding doctor not liable for professional negligence ‑‑ Whether Court of Appeal erred in overturning findings of fact.
Respondents' five‑year‑old daughter suffered a severe cut to her elbow which severed an artery and caused an extensive haemorrhage and blood loss. Her mother bound the arm tightly and took her to a local general hospital. The child was put in the care of the appellant, a general practitioner who was on call at the emergency room. He performed a vein dissection so that fluids could be replaced in the patient's body through an intravenous drip. Realizing, however, that he would be unable to repair the artery, the appellant did not proceed with a blood transfusion but decided to send her to a hospital specializing in paediatric care. He telephoned the paediatric hospital and spoke to a doctor on call in the emergency room, to whom he described the severity of the patient's injury, the treatment administered and the possibility of the child going into shock. He then wrote a transfer order which indicated that the patient was in a state of pre‑shock, and dispatched the patient in an ambulance. After she arrived at the paediatric hospital, the child was seized with a massive cardio‑respiratory arrest. She suffered a deficiency of oxygen to the brain and sustained irreversible brain damage, resulting in complete and permanent disability. Respondents brought an action against the appellant and the general hospital alleging malpractice. The trial judge found that the appellant had not been negligent and dismissed the action. The Court of Appeal, in a majority judgment, reversed the judgment. The issue before this Court was whether the Court of Appeal erred in overturning the trial judge's findings as regards (1) the appellant's decision to transfer the patient when he did; (2) his decision not to proceed with a blood analysis and transfusion before the transfer; and (3) the information he transmitted to the paediatric hospital regarding the patient's condition at the time of the transfer. In the companion case, Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 000, this Court dealt with the hospital's appeal.
Held: The appeal should be allowed.
An appellate court should not interfere with a trial judge's findings and conclusions of fact in the absence of a manifest error. The privileged position of the trial judge, who has had the benefit of seeing and hearing the witnesses, extends to the testimony of experts as well as ordinary witnesses. Findings of fact based on the credibility of witnesses should not be reversed unless the trial judge made some palpable and overriding error. In this case the trial judge made findings on the credibility of witnesses and gave reasons for his preference of the testimony of some over that of others. He found the appellant, unlike the doctor who first treated the child at the paediatric hospital, to be totally credible, as well as the medical experts who testified for the defence.
Professional liability is governed by the principles of ordinary civil liability. Generally, doctors have an obligation of means, and their conduct must be assessed against the conduct of a prudent and diligent doctor placed in the same circumstances. Medical professionals should not be held liable for mere errors of judgment which are distinguishable from professional fault.
The trial judge concluded that the appellant had exercised proper judgment in deciding to transfer the patient when he did. Sooner or later the child would have had to be sent to the better equipped paediatric hospital. He found that the appellant's decision to transfer the child immediately, without giving her a blood transfusion, was reasonable. The Court of Appeal's reversal of the findings on this point did not stem from a disagreement on the proper standard of liability, nor did the majority find a palpable and overriding error in law or in the trial judge's findings of fact. The appellate court simply disagreed with the lower court's appreciation of the facts and substituted its own opinion.
A majority of the Court of Appeal also concluded that the appellant had failed to convey the necessary information to the second hospital, since his telephone conversation did not alert the doctor on call to the severity of the patient's condition. The trial judge's conclusion that the appellant had acted diligently in the circumstances was based on the evidence, however, and so did not constitute a palpable error. The evidence also confirms that the staff at the paediatric hospital appreciated the incoming patient's medical state. The Court of Appeal was not entitled to substitute its opinion for that of the trial judge in these circumstances.
Cases Cited
Referred to: Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 000; Dorval v. Bouvier, [1968] S.C.R. 288; Joseph Brant Memorial Hospital v. Koziol, [1978] 1 S.C.R. 491; Métivier v. Cadorette, [1977] 1 S.C.R. 371; Schreiber Brothers Ltd. v. Currie Products Ltd., [1980] 2 S.C.R. 78; Lensen v. Lensen, [1987] 2 S.C.R. 672; Laurentide Motels Ltd. v. Beauport (City), [1989] 1 S.C.R. 705; Beaudoin‑Daigneault v. Richard, [1984] 1 S.C.R. 2; Roberge v. Bolduc, [1991] 1 S.C.R. 374; X. v. Mellen, [1957] Que. Q.B. 389; Hôpital général de la région de l'Amiante Inc. v. Perron, [1979] C.A. 567; Tremblay v. Claveau, [1990] R.R.A. 268; Cloutier v. Hôpital le Centre hospitalier de l'Université Laval (CHUL), [1990] R.J.Q. 717; Vigneault v. Mathieu, [1991] R.J.Q. 1607; Martel v. Hôtel‑Dieu St‑Vallier, [1969] S.C.R. 745; Nencioni v. Mailloux, [1985] R.L. 532.
Statutes and Regulations Cited
Civil Code of Lower Canada, art. 1053.
Authors Cited
Bernardot, Alain et Robert P. Kouri. La responsabilité civile médicale. Sherbrooke: Éditions Revue de Droit Université de Sherbrooke, 1980.
Crépeau, Paul‑André. "La responsabilité civile du médecin" (1977), 8 R.D.U.S. 25.
Nadeau, André. "La responsabilité médicale" (1946), 6 R. du B. 153.
APPEAL from a judgment of the Quebec Court of Appeal, [1989] R.J.Q. 2619, 25 Q.A.C. 33, 2 C.C.L.T. (2d) 97, reversing a judgment of the Superior Court dismissing respondents' action against appellant. Appeal allowed.
Paul D. Leblanc and Serge Gaudet, for the appellant.
Jean‑Pierre Pilon and Yvan Major, for the respondents.
The judgment of the Court was delivered by
//L'Heureux-Dubé J.//
L'Heureux-Dubé J. -- This appeal raises once again the important issue of the role of an appeal court as regards a trial judge's findings and conclusions of fact, here in the context of professional liability.
Summary Facts
Since this case implies in great part a review of disputed facts, I will discuss them in more detail later on. The basic series of events and their tragic consequences, however, are not controversial and can be summarized as follows.
On the afternoon of March 1, 1975, while she was playing at home, the five‑year old respondent Nancy Lapointe seriously injured herself. A cut in one of her elbows substantially severed her muscles and nerves and the humeral artery, causing an extensive haemorrhage and blood loss. Her mother, the respondent Gabrielle Imbeault‑Lapointe, bound Nancy's arm tightly with a cloth with the help of her brother‑in‑law, and they drove to Hôpital Le Gardeur, a small general hospital in Repentigny, Quebec. They arrived at the emergency room between 4:15 and 4:20 p.m.
At Le Gardeur, a nurse put a tourniquet on Nancy's arm and brought her to an examining room. She was put in the care of the appellant, Dr. Maurice Chevrette, a general practitioner who was on call at the emergency room that day. After examining the wound, Dr. Chevrette concluded that the first priority was the replacement of fluids in the child's body through an intravenous drip, since she had lost a significant amount of blood. When the two nurses assisting him, Nurse Hannah-Parr and Nurse Richard-Chagnon, were unable to find a place to insert a tube, Dr. Chevrette proceeded to a dissection of the vein. The intravenous drip was eventually put in place and 500 cc. of Rheomacrodex was administered. During the course of this treatment, Nancy was conscious and her vital signs remained normal.
Realizing that he would be unable to repair the artery, Dr. Chevrette phoned Hôpital Sainte‑Justine, a paediatrics teaching hospital in Montreal. He spoke to a doctor on call in the emergency room, describing the severity of the patient's injury, the treatment administered at Le Gardeur, and the possibility of the child going into shock. He then wrote a transfer order which indicated the emergency treatment the patient had received, that she had suffered a severe laceration in the right elbow and that she was in a state of pre‑shock. Nancy was put into an ambulance at around 5:30 p.m. for the trip to Sainte‑Justine about 30 kilometres away, accompanied by her mother and Nurse Parr.
The ambulance ride between Le Gardeur and Sainte‑Justine took about twenty‑five minutes, during which time Nancy remained conscious and talked to her mother. They arrived at their destination at around 6 p.m., where they were met by the surgeon on call, Dr. Yvan Dion. Nancy was taken to an examining room, where she was transferred from the ambulance stretcher to a hospital stretcher. Dr. Dion proceeded to a series of tests, including X‑rays. He removed the elastic tourniquet placed on Nancy's arm at Le Gardeur, examined the wound, and installed an inflatable tourniquet.
At about 6:30 p.m., Nancy's condition began to deteriorate rapidly. Just after she had been taken to the emergency cardiac unit, she was seized with a massive cardio‑respiratory arrest. Emergency measures were undertaken, but Nancy suffered a critical cerebral anoxia, or deficiency of oxygen to the brain. She fell into a coma which lasted a few weeks. When she awoke, it became apparent that she had sustained irreversible brain damage, resulting in complete and permanent disability.
The respondents, in their own names and in that of their daughter, took an action against Dr. Chevrette alleging malpractice, and against Hôpital Le Gardeur as his employer (see Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 000, judgment also released today).
Judgments
Superior Court
During the fourteen-day hearing, the trial judge, Vallerand J. (now of the Court of Appeal) heard a number of witnesses, particularly expert witnesses. He made determinations with respect to the credibility of these witnesses and found the appellant, Dr. Chevrette, as well as experts who testified on his behalf, to be credible. Assessing the whole of the evidence against the standard test of liability for professional negligence, he found that Dr. Chevrette had not been negligent in the discharge of his duty toward his patient Nancy Lapointe. Accordingly, he dismissed the respondents' action in the following terms:
[translation] I therefore find that the defendant Chevrette exercised sound judgment after having competently assessed the situation and that he used all reasonable means at his disposal in caring for his patient. That being so, the inevitable conclusion is that he has discharged any burden of proof thrust upon him by the chain of events in question.
Given this conclusion, Vallerand J. also dismissed the respondents' action against Hôpital Le Gardeur.
Court of Appeal, [1989] R.J.Q. 2619
A majority of four judges in the Court of Appeal, each writing separate reasons, allowed the appeal on the ground that Dr. Chevrette was negligent on the occasion of the transfer of Nancy Lapointe to Hôpital Sainte‑Justine. A majority also allowed the appeal against Hôpital Le Gardeur, holding the hospital liable for Dr. Chevrette's negligence. Beauregard J.A., dissenting, would have dismissed the appeal, finding no error in the trial judge's determinations and conclusions of fact in the context of the professional standard of liability to be met by Dr. Chevrette.
Issues and Arguments
The appellant takes issue before us with the Court of Appeal's reversal of the trial judge's findings and conclusions of fact, more particularly as regards the following points:
1.Dr. Chevrette's decision to transfer the patient from Hôpital Le Gardeur to Sainte‑Justine at the time he did;
2.Dr. Chevrette's decision not to proceed to a blood analysis and transfusion before the transfer;
3.The information transmitted by Dr. Chevrette to Sainte‑Justine with respect to the patient's condition at the time of the transfer.
In the appellant's view, the majority of the Court of Appeal purely and simply substituted its opinion for that of the trial judge since it failed to point out any error on his part.
The respondents maintain that the Court of Appeal was correct in allowing the appeal since, in their view, the trial judge misinterpreted the evidence with respect to the three points mentioned above.
The Role of an Appellate Court
That an appellate court should not interfere with the findings and conclusions of fact of a trial judge, failing a manifest error, is a well‑established principle. As Fauteux J. wrote for the Court in Dorval v. Bouvier, [1968] S.C.R. 288, at p. 293:
[translation] Because of the privileged position of the judge who presides at the trial, who sees and hears the parties and witnesses and who assesses their evidence, it is an established principle that his opinion is to be treated with the utmost deference by the appellate court, whose duty is not to retry the case nor to interfere by substituting its assessment of the evidence for that of the trial judge, except in the case of a clear error on the face of the reasons or conclusions of the judgment appealed from.
The privileged position of the trier of fact extends not only to the testimony of ordinary witnesses, but of expert witnesses. In this respect, Spence J. wrote in Joseph Brant Memorial Hospital v. Koziol, [1978] 1 S.C.R. 491, at p. 504:
I am strongly of the view that it is not the function of an appellate court to reconsider that evidence whether it be upon facts or a matter of professional opinion and come to a different conclusion, unless it could be shown that the evidence reasonably could not result in justifying the conclusion made by the trial judge. [Emphasis added.]
This principle of non‑intervention also applies where the only issue is the interpretation of the evidence as a whole; see Métivier v. Cadorette, [1977] 1 S.C.R. 371, at p. 382.
While an appellate court may review a trial judge's findings of fact, it is not its function to conduct a trial de novo. Laskin C.J. emphasized this point in Schreiber Brothers Ltd. v. Currie Products Ltd., [1980] 2 S.C.R. 78, at p. 84:
It would, of course, be open to an appellate court, where credibility of a witness was not in issue, to review findings of fact by a trial judge if they were based on a failure to consider relevant evidence or on a misapprehension of the evidence. An appeal, however, is not a complete rehearing.
If an appellate court interferes with findings of fact, it must be on the basis of errors made by the trial judge. The kinds of error which merit intervention on appeal were identified by Dickson C.J. in Lensen v. Lensen, [1987] 2 S.C.R. 672, at p. 683:
It is a well‑established principle that findings of fact made at trial based on the credibility of witnesses are not to be reversed on appeal unless it can be established that the trial judge made some "palpable and overriding error which affected his assessment of the facts"....
More recently, in Laurentide Motels Ltd. v. Beauport (City), [1989] 1 S.C.R. 705, this Court allowed an appeal from the Court of Appeal's reversal of the trial judge's findings of fact. After reviewing the authorities, the Court held at p. 794:
When a trial judge is assessing facts in terms of the law, what matters is that his conclusions be based on the evidence, that is, consistent with the evidence, and that no evidence essential to the outcome of the case be ignored....
As regards determination of the facts, which is the sovereign right of the trial judge, an appellate court, and a fortiori a second appellate court, will intervene only when it has been shown that there is a manifest or palpable error by the trial judge. It is now almost axiomatic to say that determining the facts is the province of the trial judge, who has seen and heard the witnesses and is in a position to assess the credibility that the testimony of each should be given.
Obviously, the task of an appellate court will be greatly simplified where the trial judge has carefully explained the reasons for his or her findings and conclusions. As the Court concluded in Laurentide Motels, supra, at p. 799:
... an appellate court which has neither seen nor heard the witnesses and as such is unable to assess their movements, glances, hesitations, trembling, blushing, surprise or bravado, is not in a position to substitute its opinion for that of the trial judge, who has the difficult task of separating the wheat from the chaff and looking into hearts and minds of witnesses in an attempt to discover the truth. If it happens that the trial judge neglects to indicate his findings in this respect or does not adequately support them, then it may be that an appellate court has to form its own conclusions. However, that is not the case here, where as we have seen the judge noted his impressions frequently and supported his findings. [Emphasis added.]
In the absence of an identifiable error by the trial judge, a Court of Appeal should not substitute its opinion. In the words of Lamer J. (now Chief Justice) in Beaudoin‑Daigneault v. Richard, [1984] 1 S.C.R. 2, at pp. 8‑9:
... an appellate court should not intervene unless it is certain that its difference of opinion with the trial judge is the result of an error by the latter. As he had the benefit of seeing and hearing the witnesses, such certainty will only be possible if the appellate court can identify the reason for this difference of opinion, in order to be certain that it results from an error and not from his privileged position as the trier of fact. If the appellate court cannot thus identify the critical error it must refrain from intervening, unless of course the finding of fact cannot be attributed to this advantage enjoyed by the trial judge, because nothing could have justified the judge's conclusion whatever he saw or heard; this latter category will be identified by the unreasonableness of the trial judge's finding....
In the case at bar, the appellant urges us to apply these principles since, in his view, the Court of Appeal overstepped its authority in reversing the findings and conclusions of fact of the trial judge. Before turning to the case at bar, however, it is important to set out the legal framework of this case by briefly reviewing the principles governing professional liability.
Professional Liability
The principles which govern professional liability have a long jurisprudential history, but any review of the law must begin with art. 1053 of the Civil Code of Lower Canada and the notion of fault:
1053. Every person capable of discerning right from wrong is responsible for the damage caused by his fault to another, whether by positive act, imprudence, neglect or want of skill.
Professional liability imports the principles of ordinary civil liability. Generally, doctors have an obligation of means, and their conduct must be assessed against the conduct of a prudent and diligent doctor placed in the same circumstances. In the words of Professor Paul‑André Crépeau in his seminal article entitled "La responsabilité civile du médecin" (1977), 8 R.D.U.S. 25, at pp. 28‑29:
[translation] Unless otherwise expressly provided, a physician has, by virtue of a now generally accepted classification, an obligation of means, that is he must, as stated by the Cour de Cassation in the Mercier case in 1936, provide "care which is prudent, attentive, conscientious and, subject to exceptional circumstances, in accordance with what is known by science".
The assessment of such an obligation is to be carried out not in concreto based on some subjective criterion such as whether the obligee has done his best, but rather in abstracto according to the objective criterion of what a prudent and diligent doctor would have done in similar circumstances.
Elaborating on the notion of fault as it applies to medical professionals, Alain Bernardot and Robert Kouri write in La responsabilité civile médicale (1980), at p. 12:
[translation] Hence the general rule must be the principle of assessment in abstracto. That principle requires that the attitude of a party being sued be evaluated in relation to that which a competent professional would have had at the same time and in the same place. But who is this competent professional?
He is a prudent and diligent individual placed in the same situation as the party being sued before the courts. Thus, if a physician is being sued, the question is what a prudent and diligent physician would have done.
For a review of the authorities see the recent decision by this Court Roberge v. Bolduc, [1991] 1 S.C.R. 374, at pp. 393 et seq.
Courts in Quebec have consistently applied these principles. In X. v. Mellen, [1957] Que. Q.B. 389, the Quebec Court of Appeal held that doctors have an obligation of means. Similarly, in Hôpital général de la région de l'Amiante Inc. v. Perron, [1979] C.A. 567, Lajoie J.A. wrote at p. 574:
[translation] As a general rule, the obligation of a physician and a hospital toward a patient is not one of result but of means, that is an obligation of prudence and diligence whose violation is not to be assessed subjectively by inquiring whether the author of an act or omission has done his best, but rather according to an objective and abstract criterion under which the court asks what another doctor, another specialist, another nurse of ordinary and reasonable knowledge, competence and skill would have done in circumstances similar to those in which the person whose conduct is to be judged found himself or herself.
See also: Tremblay v. Claveau, [1990] R.R.A. 268 (C.A.), at p. 271; Cloutier v. Hôpital le Centre hospitalier de l'Université Laval (CHUL), [1990] R.J.Q. 717 (C.A.), at p. 721; and Vigneault v. Mathieu, [1991] R.J.Q. 1607 (C.A.), at pp. 1614‑15. As the judgment from Hôpital général de la région de l'Amiante indicates, courts should be careful not to rely upon the perfect vision afforded by hindsight. In order to evaluate a particular exercise of judgment fairly, the doctor's limited ability to foresee future events when determining a course of conduct must be borne in mind. Otherwise, the doctor will not be assessed according to the norms of the average doctor of reasonable ability in the same circumstances, but rather will be held accountable for mistakes that are apparent only after the fact.
Both doctrine and case law emphasise that medical professionals should not be held liable for mere errors of judgment which are distinguishable from professional fault. According to Hyde J. in X. v. Mellen, supra, at p. 406:
The surgeon is, certainly, not to be judged by the result, nor is he to be condemned for a mere error in judgment. That error however must, as Rand J. says in Wilson v. Swanson [[1956] S.C.R. 804, at p. 812], be "distinguished from an act of unskilfulness or carelessness or due to lack of knowledge".
This approach was upheld by this Court in Martel v. Hôtel‑Dieu St‑Vallier, [1969] S.C.R. 745; see also Cloutier, supra, at p. 721.
Given the number of available methods of treatment from which medical professionals must at times choose, and the distinction between error and fault, a doctor will not be found liable if the diagnosis and treatment given to a patient correspond to those recognized by medical science at the time, even in the face of competing theories. As expressed more eloquently by André Nadeau in "La responsabilité médicale" (1946), 6 R. du B. 153, at p. 155:
[translation] The courts do not have jurisdiction to settle scientific disputes or to choose among divergent opinions of physicians on certain subjects. They may only make a finding of fault where a violation of universally accepted rules of medicine has occurred. The courts should not involve themselves in controversial questions of assessment having to do with diagnosis or the treatment of preference.
Or, as summarized by Brossard J. in Nencioni v. Mailloux, [1988] R.L. 532 (Sup. Ct.), at p. 548:
[translation] . . . it is not for the court to choose between two schools of scientific thought which seem to be equally reasonable and are founded on scientific writings and texts....
It is with these parameters in mind that this case must be reviewed and analyzed.
Analysis
Introduction
In the case at bar, the Court of Appeal had the benefit of a lucid, well‑reasoned and detailed judgment by the trial judge. Vallerand J. carefully examined the evidence and expressed his views in great detail. More importantly, he made findings on the credibility of witnesses and gave reasons for his preference of some witnesses' testimony over others.
First, the trial judge found the appellant Chevrette totally credible. In accepting the doctor's account of the events which took place at Hôpital Le Gardeur, Vallerand J. wrote:
[translation] The fact is that notwithstanding his interest in the case, Dr. Chevrette gave, without ever contradicting himself, testimony which was at once spontaneous, carefully considered and accurate, restrained, balanced and undogmatic, corroborated by auxiliaries whose credibility was equal to his own. This testimony has not been seriously controverted in any way.
He also made it clear that he fully accepted the testimony of Nurse Parr, who travelled in the ambulance with Nancy to Sainte‑Justine. He noted:
[translation] What I have said concerning the testimony of Dr. Chevrette applies also to the conduct of Nurse Parr, particularly since, if she had wished to put herself beyond all blame and give her colleague and her employer the benefit of false testimony, she could easily and with virtually no risk of being found out have stated that she uncovered the wound during the journey and observed that there was no haemorrhage. She could likewise have denied the presence of blood on the stretcher.
In contrast, Vallerand J. found Dr. Dion, the doctor who first treated Nancy in the emergency room at Sainte‑Justine, not to be a credible witness. With respect to his testimony regarding the alleged inadequacy of the tourniquet applied by Dr. Chevrette, the trial judge wrote:
[translation] The witness Dion is the only one to give evidence with regard to this fundamentally important observation [of blood on the stretcher]. Not the slightest mention was made of it by those -‑ the ambulance attendant, the resident doctor and the nurses -‑ who had been busily engaged around the stretcher (the ambulance stretcher and not that of the hospital where it would appear the child was placed upon admission). While it is true that Dr. Dion expressed very dramatically his sentiments to Dr. Taché, the plastic surgeon summoned to repair the wound, that occurred after the heart failure and is thus equally consistent with the truth as with an attempt to deflect possible blame.
That having been said and given the significance of the blame, which, it will be seen, is in keeping with all other aspects of the case, it becomes essential to determine Dion's credibility as a witness. As to his conduct on the stand, it was, apart from a certain offhandedness not at all out of place within a context of amiable bonhomie, unexceptionable. More disturbing, however, is the discovery, upon examination of the exhibits and the testimony, that the witness Dion just as casually confused his recollection, his assessment and his understanding of the hospital record, relying on his own imagination, and that on numerous points he is clearly contradicted by the evidence as a whole and, in some instances, by witnesses whose credibility is beyond all doubt.
Vallerand J. also explained why he discounted the evidence of the experts who testified on behalf of the respondents. In his view, their opinions were based on the version of facts related in the discredited testimony of Dr. Dion. He stated:
[translation] If some doctors called by the plaintiffs saw fit to be very critical in this regard only in their assessment of Dr. Chevrette, I believe it is because they had been to a large degree set against him by the statements of their colleague Dr. Dion, which neither they nor the plaintiffs had any reason to disbelieve, and that as professionals they were outraged by what they perceived to have been the conduct of Dr. Chevrette. I am also of the opinion that based on the arrival of a child weltering in its own blood, they believed themselves duty‑bound to pass upon all aspects of the case a judgment at once emotional, harsh and absolute. I do not think they should be open to serious criticism for that, their lack of objectivity being explicable in light of the facts as they believed them to be and the seriousness of the events. I must, however, without ascribing to them any bad faith, much less evil intent, be extremely careful in considering opinions and assessments more categorical and absolute than would appear to be warranted by the evidence, which, I might add, I accept.
On the other hand, Vallerand J. emphasised the credibility of the experts who testified in support of the appellant, Doctors Cossette and Laflèche, writing:
[translation] It now remains to examine the analyses of Cossette and Laflèche, the expert witnesses of the defence.
I have already indicated that the conduct of both on the stand was exemplary in every way. Likewise their competence in the field of vascular medicine is undeniable, particularly that of Dr. Cossette, who has carried out extensive studies of shock. Their testimony is based on the evidence of Dr. Chevrette -‑ which evidence, as did the judge, they accept totally, both on the objective question of the events themselves and on the subject of his assessment of the situation, indeed on that of his feelings at the time, and it is for that reason all the stronger and more relevant. While it is true that the Court is not bound by expert opinion, in this instance I unhesitatingly endorse all the conclusions of Doctors Cossette and Laflèche with respect to the professional conduct of the defendant Chevrette. In fact, those are the very inferences which I myself would have drawn from the evidence as a whole by the application of simple ordinary common sense, without the benefit of the opinions or the teaching of the experts.
He noted specifically with respect to Dr. Laflèche's testimony:
[translation] I will not repeat here the demonstration of that point by Dr. Léo Laflèche, whose experience and qualifications in the field are unquestionable and whose testimony, while unsparing of Dr. Dion, revealed a careful examination of the record and a full understanding of the duties of an expert witness, unblemished by unwholesome professional solidarity.
Similarly, in discussing an opinion expressed by Dr. Cossette, he wrote that [translation] "the knowledge, level-headedness and objectivity" of this expert were above reproach.
Finally, the trial judge made it clear that he was fully aware of the medical context of the case. For instance, he explained the nature of Nancy Lapointe's injury and cardiac arrest as it was related to him by the experts called to the stand, and the four‑step treatment which a serious haemorrhage requires, as well as the danger of shock and the phenomenon of compensation. His reasoning regarding the respondents' specific allegations was equally meticulous. For example, with respect to the claim of massive blood loss in the ambulance due to an insufficient tourniquet (apparently a major focus at trial but not relied on by the Court of Appeal), Vallerand J. carefully reviewed all of the evidence and lack thereof, noting how and why he drew certain inferences and assessing the credibility of various witnesses.
The Court of Appeal could not ignore these findings, nor should we, in discussing the three issues which form the basis of this appeal and to which I now turn.
(a) The transfer to Sainte‑Justine
In dealing with the allegation that the appellant Dr. Chevrette was at fault in deciding to transfer the patient to Sainte‑Justine when he did, Vallerand J. first concluded that sooner or later Nancy would have had to be sent to the better‑equipped paediatric hospital. He wrote:
[translation] All agree that in order to repair the wound a transfer to Sainte‑Justine hospital had to be effected by early evening at the latest. Likewise I accept, without denying the capacity of Le Gardeur hospital in this regard, that Sainte‑Justine hospital was in all respects much better able to follow the progression of the apprehended shock and to carry out all the tests required for this purpose and, if necessary, to intervene in the case of heart failure.
A transfer was thus necessary in the medium term for surgical purposes and advisable in the short term in order to control the blood loss. All that remained to be decided was the time. Dr. Chevrette took into account the distance to be covered, the immediate availability of an ambulance, the duration of the journey, the clinical condition of the patient -‑ which, in the opinion of Dr. Cossette, whose knowledge, level-headedness and objectivity are beyond reproach, appeared less serious than feared by Dr. Chevrette himself ‑- and the advantages, the disadvantages and the risks of the transfer, and, having done so, saw fit to proceed with it.
The judge then reviewed the parties' arguments. Dr. Chevrette claimed that he had exercised sound medical judgment, and presented expert evidence in support, while the respondents and their experts maintained that the decision to transfer the patient at that time was irresponsible and medically unsound.
Having previously found that respondents' experts had based their assessment of Dr. Chevrette's conduct on the erroneous information supplied by Dr. Dion, Vallerand J. ruled that their opinion with respect to whether Dr. Chevrette had acted properly in the circumstances was not to be retained. As he observed:
[translation] So according to the plaintiffs' expert witnesses, the transfer was ill‑advised, while those of the defence opined that the defendant Chevrette had fully and judiciously assessed the situation and exercised his professional judgment while taking all necessary precautions.
It is well established in the case law that, when confronted with two generally recognized schools of thought, the Court will not interfere with the reasonable choice of one or the other. Only at first blush, however, does the problem here seem to present itself in that light, for the plaintiffs submit that the defendant simply "got rid" of his patient -‑ an aspersion on the doctor's integrity, and not merely on his competence, which again, apart from the image of the unconscious child weltering in its own blood, was quite inconsistent with the evidence. The plaintiffs forcefully add in passing that whatever the case may be, there can never be any question of transferring a patient before his circulation has been stabilized, an assertion which the plaintiffs' witness Dr. Blanchard, when pressed a bit harder, found himself forced, with the help of an obvious example, to qualify by speaking of an exercise of judgment based on an assessment of the situation. Accepting as I do this qualification by the plaintiffs' expert and accepting the evidence of the defence experts on this point, I find that the advisability of a transfer at a given time is a matter of professional judgment. But by alleging that Dr. Chevrette "got rid" of his patient, thereby failing to assess the situation and to exercise his judgment, the plaintiffs are contributing only very incidentally to the Court's evaluation of Dr. Chevrette's exercise of judgment.
The trial judge then assessed the conduct of Dr. Chevrette in light of the circumstances of the treatment at Hôpital Le Gardeur as revealed by the evidence and, in particular, by the testimony of the medical experts Doctors Cossette and Laflèche. Based on Dr. Chevrette's testimony and that of his experts, Vallerand J. found that Dr. Chevrette had exercised proper judgment. His conclusions bear repeating:
[translation] I therefore find that the defendant Chevrette exercised sound judgment after having competently assessed the situation and that he used all reasonable means at his disposal in caring for his patient. That being so, the inevitable conclusion is that he has discharged any burden of proof thrust upon him by the chain of events in question.
In the Court of Appeal, Jacques and LeBel JJ.A. overturned the trial judge on this specific point. While LeBel J.A. focused more specifically on the need for a blood transfusion before the transfer, Jacques J.A. wrote categorically at p. 2629:
[translation] The transfer was not absolutely necessary when it was carried out, nor was it one of the risks inherent in the emergency treatment. It was imposed without adequate justification ‑- the danger of cerebral anoxia -‑ when there existed no risk of immediate loss of the limb.
This decision, unjustified in the circumstances, resulted in Nancy's losing any chance of being healed.
Neither Mailhot nor Beauregard JJ.A. agreed with their colleagues on this aspect of the appeal. They were of the view that the appreciation of expert testimony with regard to professional judgment is the province of the trial judge and that Vallerand J. had not erred in this regard (see pp. 2622 and 2645); Monet J.A. is silent on this issue.
In overturning the findings of the trial judge on this point, neither LeBel nor Jacques JJ.A. made any concrete reference to the expert opinions or to any other evidence presented at trial. With respect, in so doing, they purely and simply substituted their opinion for that of the trial judge in the absence of a determination of any palpable error on his part. Moreover, according to my reading of the evidence, there was ample evidence upon which the trial judge could come to the conclusion that Dr. Chevrette's decision to transfer Nancy was