Vancouver General Hospital v. Fraser

Vancouver General Hospital v. Fraser
Collection
Supreme Court Judgments
Date
1952-05-12
Report
[1952] 2 SCR 36
Judges
Kerwin, Patrick; Rand, Ivan Cleveland; Kellock, Roy Lindsay; Cartwright, John Robert; Fauteux, Joseph Honoré Gérald
On appeal from
British Columbia
Subjects
Labour law
Decision Content
Supreme Court of Canada
Vancouver General Hospital v. Fraser, [1952] 2 S.C.R. 36
Date: 1952-05-12
The Vancouver General Hospital (Defendant) Appellant;
and
Elizabeth Mildred Fraser, executrix of the estate of Gordon Arthur Fraser, Deceased (Plaintiff) Respondent.
1952: February 12, 13, 14, 18, 19; 1952: May 12.
Present: Kerwin, Rand, Kellock, Cartwright and Fauteux JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA.
Master and servant—Hospitals—Liability of hospital for negligence of interne—Patient discharged with broken neck—Interne incompetent to read X-rays and failed to consult radiologist—Whether discharge was the cause of the death of the patient.
The respondent's husband, following an automobile accident, was admitted at night into the emergency ward of the appellant hospital. There, he was examined by the internes on duty and X-rays were taken. The films were not submitted to a radiologist who was on call, but the internes, although not competent to read them, proceeded to do so and advised the family physician that they had found nothing abnormal, with the result that the patient was discharged from the hospital with a dislocated fracture of the neck. The following day, he was re-admitted to the hospital by his own physician after the X-ray films had been examined by a radiologist, but died a few days later.
The jury rendered a general verdict against the appellant and this was affirmed in the Court of Appeal for British Columbia.
Held (Locke J. dissenting), that the appeal should be dismissed and the action maintained.
Held: The hospital undertook to treat the patient and was responsible for the negligence of its internes; and there was evidence on which the jury might properly find that the death of the patient resulted from his discharge from the hospital due to the interne's negligence either in not reading the X-ray films correctly or in not calling a radiologist.
Per Locke J. (dissenting): The hospital undertook to give the patient both nursing and medical attention, and the negligence of the interne would render the hospital liable for any resulting damage; there was however no evidence from which the jury might properly draw the inference that the ileus, which caused the death, resulted from his failure to properly diagnose the nature of the original injury or from anything done by or on behalf of Fraser in reliance upon his advise. (Ryder v. Wombwell (1868) L.R. 4 Ex. 32 referred to).
APPEAL from the judgment of the Court of Appeal for British Columbia[1] , affirming a judgment rendered pursuant to the general verdict given by the jury in favour of the plaintiff-respondent in an action for damages. Alfred Bull Q.C. and E. A. Burnett for the appellant.
The responsibility for the discharge of the patient was assumed by the deceased's own doctor as appears in the evidence. But if it could be said that there was evidence on which the jury could find that that responsibility was passed back to the interne and that he accepted such responsibility, the following submissions are made: (a) the responsibility was still that of the patient's physician but if he delegated it to someone else that was merely his method of discharging his responsibility; (b) if the interne accepted the responsibility to use his own judgment on the instructions of the physician, such action would not be within the course of the interne's employment so as to make the hospital responsible for his actions; (c) The Sisters of St. Joseph v. Fleming[2] , C.P.R. v. Lockhart[3] , Plumb v. Cobden Flour Mills Co.[4] , Bugge v. Brown[5] , Dallas v. Home Oil Distributors[6] and Goh Choon Seng v. Lee Kim Soo[7] ; (d) if the patient's own physician was not called by the respondent as a witness, the inference is that his evidence would not have been in favour of the respondent.
The discharge from the hospital was not the cause of the death. To show that it was is an extremely heavy burden and if closely examined would appear incapable of proof. The respondent had to show by a preponderance of evidence that the deceased would not have died had he not been discharged. The respondent's expert witness failed completely to connect the discharge with the death, and the witnesses for the appellant did not attribute the death to that cause.
There is no evidence of any negligence on the part of the appellant. The case is put on the basis of the decision in Vancouver General Hospital v. McDaniel[8] , because this case is one of vicarious responsibility and not one of direct attack on the system of the hospital.
The negligence alleged i.e. that the hospital discharged the patient when the interne ought to have known that he had suffered a dislocated fracture of the neck is not negligence in law. It is submitted that the interne made a careful examination of the X-ray films and consulted with the other interne on the reading. He did not perceive that there was a dislocated fracture because he did not have the expert knowledge necessary properly to read the film. If he did not have such expert knowledge he could not be negligent in his reading. Abel v. Cooke and Lloydminster and District Hospital Board[9] , Rich v. Pierpont[10] and Seare v. Prentice[11] .
There is no dispute that the interne was an employee of the appellant and if negligent that the hospital would be liable.
Paul D. Murphy for the respondent. There was evidence to support the jury's finding that the appellant was negligent in discharging the deceased and that the employees of the hospital knew or ought to have known that the deceased at the time of the discharge had a dislocated fracture of the neck: the patient's complaints and the observed and observable symptoms of his condition, the failure of the interne to call the radiologist, etc. The charge of the trial judge has not been challenged on the issue of negligence and there was evidence upon which the jury could find that the appellant was negligent; McConnel v. McLean[12] .
There was evidence to support the jury's finding that the deceased was discharged by employees of the appellant and not by his own physician. It is common ground that the physical discharge was by the hospital. That established a prima facie case against the hospital. The onus was then on the appellant to prove that the patient's physician discharged him. No doctor can have a patient in his care without seeing and diagnosing him and only the interne saw him. Therefore, Dr. Blair was not his doctor in this case. Dr. Blair could rely on the information given by the interne who was fully competent as a duly qualified practitioner and servant of the hospital. If Dr. Blair told the interne: If you think he can be discharged, go ahead. Then it becomes the discharge by the hospital.
There was evidence to support the jury's finding that the deceased's discharge caused his death. There was direct evidence of nerve injury or cord pressure arising out of his discharge. There was also evidence from which this could be inferred by the jury. There was also evidence that the discharge caused other fractures and dislocation i.e. additional injury contributing to nerve injury or cord pressure.
In the particular facts of this case the appellant is legally liable for the negligence of its internes: Evans v. Liverpool Corp.[13] , Hillyer v. St. Bartholomew's Hospital[14] and Sisters of St. Joseph v. Fleming[15] .
The facts were put to the jury, no attack was made on the charge to the jury and the jury could reasonably come to the conclusion to which they arrived.
KERWIN J.:—There can be no question but that the appellant hospital undertook to treat Fraser. The latter was entitled to expect that the hospital would have someone in attendance who could correctly read the X-ray film or who would call in assistance for that purpose, as was provided for by the constitution of the hospital. The appellant's system is not attacked as provision was made therein for an interne, if he considered it necessary or advisable, to call in a radiologist. Before this Court the appellant advanced no claim that if Dr. Heffelfinger were at fault it would not be responsible for the results of his negligence.
I agree with the conclusions of my brothers Rand and Kellock that, upon a charge that has not been objected to, it was open to the jury to find (a) that Dr. Heffelfinger was negligent either in not reading the X-ray film correctly or in not calling in a radiologist; (b) that the appellant through Dr. Heffelfinger negligently discharged Fraser; (c) that such negligence caused Fraser's death.
The appeal should be dismissed with costs.
RAND J.:—The respondent is the widow of a ship's officer who died in the Vancouver General Hospital in the following circumstances. Shortly after 11:00 o'clock on the night of March 8, 1949, following an automobile accident, the deceased was brought by ambulance to the emergency ward of the hospital. There were lacerations on his forehead, and he complained of pain and stiffness in his neck. At the time the ward was in the charge of Dr. Davies, serving as an interne. At midnight, Dr. Heffelfinger, also an interne came on duty. Before he arrived, Dr. Davies had communicated with Dr. Blair whose name had been given by the injured man's wife as the family doctor, and had ordered an X-ray to be taken of the injured neck. Later a general examination, including movements of the head and a neurological test, was carried out by Dr. Heffelfinger
The X-ray plates were received shortly afterwards, and Dr. Heffelfinger, with Dr. Davies who had remained in the ward, examined them. Dr. Heffelfinger then telephoned Dr. Blair, with a result that can best be indicated by the entry in Dr. Heffelfinger's record: "Dr. Blair aware, and agreed to discharge and to see about eleven next a.m.", meaning the discharge of the patient, who was to see Dr. Blair the next morning.
Dr. Heffelfinger thereupon instructed the patient to return home. At this time stiffness of the neck prevented a flexion reaching closer than one inch from the chest: the patient was in pain; and as he left the hospital, approaching 3:00 o'clock a.m. to enter a taxi, he was holding his head in his hands, somewhat bent forward. He was 31 years of age, over six feet in height, and had to stoop to enter and leave the taxicab; and the route home passed over a number of railway tracks.
During the remaining hours of the night he was restless and about 9:00 a.m. Dr. Rennie was called, who reached the home around 2:00 o'clock in the afternoon. Later in the evening, after receiving, apparently, a report on the X-ray plates, Dr. Rennie ordered the patient back into the hospital which, approximately 24 hours after his discharge from the emergency ward, he reached shortly after 1:00 a.m., March 10.
He was then suffering from pain in the back of the neck, his neck was held rigid, and his face was flushed, and he was at once placed on a fracture board. Morphine was administered at 1:30 and at 2:00 he was asleep. At 5:00 a.m. there was less pain in his neck but pain in midback was becoming troublesome. At 10:00 a.m. he was more comfortable but extremely thirsty. On the re-admission, there was abdominal distension evidencing in fact the early stages of a condition described as an adynamic ileus; and as this is one of the vital facts in the case, it must be made intelligible. The intestinal tract is controlled by two sets of nerves, the sympathetic and the parasympathetic. The latter furnish the stimulus of contraction and the former the reactive correlative of dilation or relaxation. At points in the tract there are valves that control the passage of matter along it, one of which is at approximately the junction of the small and large intestines. When the muscles of the former are contracted, this valve tends to open, and when they relax it tends to close. These nerves, as they proceed from the brain, pass the area of the injury laterally within the spinal cortex, emerging somewhat farther down. When they are damaged or irritated, their functioning may be disrupted. In that case, the intestinal muscles remain relaxed and the valve closed, and in the course of time putrefaction sets up in the matter retained. This produces gas, distension occurs, and the contents become forced back into the stomach and up through the esophagus; some may enter the lungs through the respiratory passages, and some be expelled as vomit. In short, a virtual reversal of the intestinal process may result with serious effects on other functions.
The X-ray plates actually revealed a fracture dislocation of the axis or second cervical or neck vertebra. The fracture was vertical and slightly behind the center line of the canal. There was a complete separation and a forward dislocation, involving the atlas and the skull, of one-third of a centimeter, on the right side of the arch or ring of the vertebra through which the cord passes; and on the left side there was a fracture commencing in the arch and running into the body of the vertebra, which is the front portion. It has not been made clear whether the latter originated or splintered on the inside or outside of the arch; Dr. Fahrni, an orthopaedic specialist, called in by Dr. Rennie, spoke of the loose portion on the right side as moving on a hinge, and that would seem to imply a split on the inside. As disclosed by the autopsy, a forward displacement of the axis on the third vertebra could be elicited by moving the head, which might mean a movement of the entire axis. Dr. Fahrni spoke of the vertebra as being "unstable." There was hemorrhage where the ligaments of the neck had been torn on the right side; and the brain tissue and the upper segments of the cord were found to be watery with oedema.
At 12:30 p.m. Dr. Fahrni made his first visit. He did not then consider it safe to put the patient through the motions of another X-ray picture. In addition to what the X-ray plates indicated, and the abdominal distension, there was an absence of borborygami, the normal gurgling sound from the intestines, with the abdomen tympanitic to percussion. What the situation demanded was obvious, to restore the intestines to their normal functioning, and to remove any possible complication by eliminating the dislocation in the axis. The patient's body was thereupon placed in extension, that is, so that the head, by its own weight, would tend to fall back: later, at 6:00 p.m., traction was applied, which means that extra weight was added to the downward drag of the head itself. The usual neurological reaction tests for evidences of nerve disturbance were made, but none found.
As a similar test had shown a similar result in the emergency ward, this is taken by Mr. Bull as demonstrating that there had not, up to the time of the re-admission, been any nerve injury resulting from the fracture. But this view takes no account of the significance of distension and the other conditions present upon re-admission. It disregards also the fact that from 1:15 a.m. until 12:30 p.m. when the test by Dr. Fahrni was made, the patient had lain on the fracture board; and from the medical evidence it was open to the jury to infer that in that time, through the automatic reaction of the muscles, the dislocation might have been reduced sufficient to mitigate pain and nerve irritation provoked between the discharge and the readmission. That there was such an irritation is deduced by the respondent from the fact of the ileus; Dr. Kempt draws that conclusion: and Dr. Naden, an orthopaedic specialist, agreed that the conditions on re-admission could be evidence of nerve injury or irritation notwithstanding there appeared to have been no physically demonstrable neurological change. But Mr. Murphy is not confined to nerve injury trauma as the instigating factor of the ileus. Admittedly the causal agencies in that derangement are obscure. Dr. Fahrni was emphatic that here was a case, from the beginning, for the utmost care in treatment and the immediate immobilization of the injured area. The fact that on one occasion after the dislocation had been eliminated, the patient had got up and walked across the room involved so much risk of displacement that Dr. Fahrni had an X-ray taken as the patient lay in bed, indicates the importance he attached to eliminating any possible effect on the ileus of the dislocation. He agreed that the shock of such an accident would undoubtedly disturb the autonomous nerve systems, including those controlling intestinal action; and that its onset could have been hastened by the 24 hours' neglect. He hesitated significantly in speaking of the watery or oedematic condition of the cord, the "degeneration" mentioned in the death certificate: it indicated pathological change which he thought more likely to be a circulatory change than an injury, if ante mortem; and the "moot point" was whether it was post or ante mortem.
Neither Dr. Fahrni nor Dr. Naden presented any theory of the cause of the ileus. Dr. Fahrni admitted frankly that he had none. Dr. Naden speculated somewhat between a range from the patient's lying on his back on the fracture board to any degree of pathological change or involvement of the nerves, including nerve irritation, of which the ileus itself could be evidence. He played with the idea of dehydration of the patient's body on the footing of his alcoholic breath. This, in a proper case, would produce an imbalance in the equilibrium of vital processes; but in the situation here his suggestion could properly be treated by the jury as quite beyond any relevancy to the task before them. In relation to the posture on the bed, what he apparently meant, although he did not trace the sequences, is that in the case of such a man, well built and physically vigorous, to arouse notions of injury and to place him under a regimen of such constraint might in some way set up functional nerve irritability. But the ileus was in its first stages before such a posture or the fracture board had appeared. On the other hand, the medical evidence is convincing that the case was one that from the beginning called for the strictest care until the condition had been fully diagnosed. The stiff neck—the broken neck, with the skull itself displaced—and the pain, were danger signals of unmistakable nature and called for only one mode of treatment. Dr. Naden at one point gave it as a considered judgment that if at that moment the patient had been told to go home and forget that he had been in an accident, he "would have been alive today"; but this was followed by the admission that in all likelihood he would have followed the same course of treatment as Dr. Fahrni, and by such other concessions and qualifications as, in the light of the stark facts, most likely nullified his evidence in its entirety.
It was agreed that in the absence of a destructive lesion to the cord, a broken vertebra is not in these days, as formerly, looked upon as a grave injury, and the normal prognosis is recovery. There may, of course, be cases in which the fracture and even dislocation may be such as to call for no treatment whatever; the bone, in such cases, adapts itself to the new position and may have either no or slight effects thereafter. But even where great care and competent treatment are called for, recovery is normally to be expected.
The jury must then have looked for some circumstances out of the ordinary of such a character as could properly be taken to be the significant factor in the situation before them. What must be kept in mind is that finding the cause is for the jurors and not the experts. These specialists are to assist the jury, not to direct them and much less to determine the fact to be found. And that finding is to be gathered by the jury from all of the circumstances, including the opinions of the professional men, but weighing them in the total complex of the controversy.
Viewing that complex as a whole, then, how can it be said that the jury could not here adjudge the unique circumstance that this man was subjected to a deprivation of initial vital care and treatment for 24 hours to be the essential and operative factor in bringing about what followed? No other factor has been seriously suggested. Fatal consequences in injuries of this kind, as the evidence indicates, have too frequently been traced to just such initial failures; and that they could find that this delinquency most probably led to the onset of the ileus in an aggravated degree that steadily deepened until death in five days, is, I think, undoubted. The alternatives, that this man was of a type peculiarly susceptible to ileus or that death would inevitably have ensued the accident, have not in the evidence the support of a syllable.
But there are two remaining grounds. Mr. Bull argues, first, that there was no negligence on the part of the interne, Dr. Heffelfinger, and secondly, that the discharge of the patient was by his own doctor and not by the hospital. These really merge into one question: was there any negligence on the part of the hospital which caused or contributed to the day's absence from the hospital? and that I now examine.
At the threshold of the enquiry stands this question: what did the hospital undertake toward the deceased when he entered the emergency ward for treatment? As can at once be seen, various matters enter into that determination. Mr. Bull introduces the regulation of the hospital dealing with the procedure in that ward; it is contained in the Hospital Manual, and is as follows:—
Any member of the house staff called to the emergency department must respond promptly. It is imperative that every emergency case be examined immediately and given such first aid treatment as is necessary on admission for making him as safe and comfortable as possible. After this, get in touch with the patient's physician and act under his orders. Specific instructions are posted in the emergency department. Report forms are to be completed in each case.
This was supplemented by the evidence of Dr. Seymour, the assistant medical director. Interneship is a preliminary hospital experience for young doctors, but whether voluntary or required does not appear. In this case, Dr. Heffelfinger was under a contract which had run for approximately nine months, and during that time he held a temporary license to practice medicine within the confines of the hospital.
That primary undertaking, symbolized in the scope of real or apparent authority of the interne, is to be gathered from all the circumstances of the entrance of the patient into the hospital, of what is sought by him and the nature of what is done to and for him. There is first the fact that he enters a hospital to which sick or injured persons resort for treatment; the patient would see both a doctor and a nurse; a preliminary examination is made of him, in which all the usual questions of a physician are put to him; there is an enquiry as to the family physician, who is spoken to on the telephone: there is the order for the X-ray, the interpretation of it, and the report made to the physician: all the ritual and paraphernalia of medical service. From all this it is clear that although the hospital indicates, the interposition of the family physician, the interne is to be more than a mere untutored communicant between him and the patient. By the terms of the regulation, he is to "examine immediately and get in touch with the physician and act thereafter under his orders;" but for that examination and report he must use the undertaken degree of skill, and that cannot be less than the ordinary skill of a junior doctor in appreciation of the indications and symptoms of injury before him, as well as an appreciation of his own limitations and of the necessity for caution in anything he does.
Dr. Heffelfinger's evidence is all we have on his report. He says: "I only gave him my findings and let him decide what to do with it—I described my findings in examination—and the X-ray findings, and asked him what he wanted to do about it, and the outcome of it was that he asked me to discharge him and come around in the morning"; and, speaking of the work of an interne generally, "also for the reason to report the results of my examination as well… it is part of the routine under circumstances such as that to look at the films and report them to the attending doctor." He claims to have warned Dr. Blair that he had had only a limited experience with X-ray plate reading; but he had come to the opinion that there was no fracture; and that he may have expressed that opinion, and also that it would be safe to allow the patient to leave, could be drawn from his evidence.
Now, was that opinion one that ought to have been given here by Dr. Heffelfinger without such qualifications as would have nullified it in the ears of Dr. Blair? The indications on the plates were perfectly clear to him at the trial; would the jury be warranted in concluding that holding such an opinion he would be unlikely to convey a true picture of the patient's condition, including that evidence of it which was described to the jury by his wife? The stark facts, the danger signs, that should have demanded verification to any doctor, interne or not, were the rigid neck and the pain. In the presence of these, to be able to minimize the injury as he did on the departure from the hospital, when the victim of it was suffering from a displaced skull, would justify the inference that his report to Dr. Blair must have been a pallid or deprecatory description of the clinical facts; and even though there may have been sufficient as it was to arouse the suspicions of Dr. Blair, that would not excuse its inadequacy or its falsity in fact.
Dr. Heffelfinger went beyond the mere communication of Dr. Blair's advice or instructions to the patient. On the wife's evidence, he actively reasured both the deceased and her, notwithstanding her hesitant acceptance of it, that there was nothing seriously wrong and no ground for anxiety. He was, of course, acting in good faith, but he failed, not, it may be conceded, in reading the plate incorrectly, but in not being more acutely sensitive to the grave symptoms that stood out before him and in not exercising caution against his inexperience, in not seeking verification. That misreading, concurred in apparently by Dr. Davies, and, on the communication, by Dr. Blair, created in him a settled opinion of the worst possible error. In these reassurances he was not exhibiting the skill and care which the hospital undertook would be exercised in the ward; and that insufficiency, regardless of whether or not he was acting on behalf of Dr. Blair, was the agency that gave rise to the fatal event that followed. On those assurances, the husband and the wife placed reliance and acted. The jury had before it evidence from which it could conclude that his duty as the representative of the hospital toward the patient was not, in the circumstances, performed by allowing the injured man to leave in the condition in which he was: and for that the hospital must answer.
I would therefore dismiss the appeal with costs.
KELLOCK J.:—Contrary to the appellant's contention, there was evidence, in my opinion, upon which the jury were entitled to find that the hospital did undertake to treat the deceased and negligently discharged him in what was actually a serious condition. The deceased was admitted at 11:10 p.m. of March 8, and shortly after, his wife, upon being notified and asked the name of the family doctor, gave the name of Dr. Blair. Dr. Davies, the interne in charge of the emergency ward at the time, had already ordered an X-ray to find out whether or not there was any fracture of the cervical vertebrae when Dr. Heffelfinger came on duty, about midnight, and the patient had been X-rayed. Shortly thereafter, he and Dr. Davies examined the films, concluded that there was "no gross abnormality," and telephoned that information to Dr. Blair. According to the report prepared by Dr. Heffelfinger, Dr. Blair "agreed" to the discharge of the patient. Dr. Blair had previously been spoken to on the telephone by Dr. Davies, but as neither was called it is not known what passed in this conversation.
Dr. Heffelfinger at first took the position in evidence that he was not qualified to read X-ray films. This he subsequently modified by saying that neither he nor Dr. Davies was qualified to give an "expert" opinion. There was on call at the hospital at all times, however, a radiologist who could have given such expert opinion had either Dr. Heffelfinger or Dr. Davies thought it necessary, and I think it was quite open to the jury to find that the two internes undertook to read and felt quite competent to read the particular films. Dr. Heffelfinger testified:
Q. Why did you look at them at all, Doctor?
A. It is part of the routine to, under circumstances such as that, to look at the films and report them to the attending doctor.
Q. Then you wish the jury to believe that you were qualified to read X-ray films?
A. In a sense, yes.
Q. Qualify it all you want. What kind of sense? We want to understand this, please.
A. Under the circumstances, I was qualified to read the films, yes, as an interne, but I was not qualified to give an expert opinion on the films.
I think there was quite sufficient evidence for the jury to find that what occurred was in accord with that which the hospital well understood was its undertaking to the public, namely to examine the deceased, including examination by X-rays as a matter of routine, to read the films, and to report the findings to the deceased's physician. I do not think the evidence precluded the jury from finding that the situation was other than one in which the deceased's physician was in charge of the whole procedure and was accepting sole responsibility for what occurred.
I think it was open to the jury to conclude that if X-rays of the particular area of the spinal cord here in question are difficult to read and require a person with more training than either of them had, the internes were negligent in failing to use the means at hand, namely, to call the radiologist to obtain a proper reading. The whole purpose of the X-rays was to ascertain whether or not the deceased had sustained a fracture. In fact he had, and Dr. Heffelfinger, on his examination for discovery admitted it was obvious from the X-ray films that such was the case. In my opinion, therefore, there was ample evidence upon which the jury could find negligence on the part of the appellant in connection with the discharge of the deceased from the emergency ward.
Coming to the question as to whether or not the respondent sufficiently established that the negligence was the cause of death, it is to be borne in mind that
Conclusions of fact embodied in the verdict of the jury cannot be subjected to the same degree of re-examination (as in the case of appeals from a judge sitting alone) for the course of reasoning by which the verdict has been reached is not disclosed, and consequently, the verdict of the jury on fact must stand if there is any evidence to support it and if the conclusion is one at which a reasonable jury when properly directed, might reasonably arrive.
Watt v. Thomas[16] , per Viscount Simon.
It is common ground that the deceased had no involvement of his nervous system at the time of his discharge from the emergency ward in the early hours of March 9. Further, all the medical witnesses agree that an injury such as that here in question need not be serious provided early treatment is received. It is true that Dr. Naden gave it as his opinion that the deceased might well have been alive today had he received no treatment, but he also said that had he been attending the case he probably would have followed the procedure which was in fact followed. The jury on this point, as on all others, were entitled to discriminate as between witnesses and as between different parts of the evidence of the same witness. The certificate of death, the contents of which, we were given to understand, constitute by statute prima facie evidence, discloses the cause of death as "Bronchopneumonia, paralytic ileus. Fracture dislocation of axis and atlas. Contributory: Softening and edema (degeneration) of medulla and cervical cord." According to the autopsist, the lungs were edematous and were typical of bronchopneumonia. These conditions he described as "terminal," that is, resulting from the paralytic ileus. He also found edema of the medulla and the upper segments of the spinal cord as well as a softening in the cord as a result of the edema. He testified:
Q. Now, so far as the time element is concerned in these injuries, is it correct that you say the condition, I think you said it, the conditions were caused by the fracture of the axis, the fracture dislocation of the axis?
A. That is correct, or an injury to the neck, which resulted in the fracture dislocation.
This answer was understood by all counsel concerned as a statement that the edema both of the lungs and of the cord were "terminal" in the same sense, that is, as resulting from the ileus. Dr. Kemp, called for the respondent, testified in chief as follows:
Q. Assuming… he dies of a paralytic ileus which, as Dr. Harmon says, caused at least two terminal conditions, bronchopneumonia—I have forgotten the other—
A. Edema of the lung.
Q. Thank you, doctor. Edema of the lung, and softening of the cord and edema of the cord.
Counsel for the appellant proceeded on the same footing.
Before dealing further with the respondent's evidence, it will be convenient to refer to evidence adduced by the appellant. Dr. Fahrni, who was called to attend the deceased on his re-entry to the hospital, but who did not see him until approximately 12:30 p.m. of March 10, made a neurological examination similar to that conducted by Dr. Heffelfinger when the patient was in the emergency ward. Dr. Fahrni, after stating that this examination indicated "no sign of any neurological involvement," then gave the following answers:
Q. When you say that, do you mean not only the spinal cord but the nervous system? Generally speaking, the nervous system?
A. Yes. Q. And when you say the nervous system, do you mean including the central nervous system—not only the central nervous system but the sympathetic and parasympathetic nervous system?
A. That is a difficult question to answer, in that anyone who has had any injury has nearly always obvious upsets in their automatic nerve system.
It is clear, I think, on the evidence, that when the deceased returned to the hospital in the early morning hours of March 10, his abdominal condition indicated that the ileus had already set in. Dr. Fahrni says that the "first symptom" he observed of the ileus was distension of the abdomen, and Dr. Naden, who was called on behalf of the appellant, testified that when the deceased got back to the hospital, it was his understanding that the condition then existed. That this was accepted at the trial appears, I think, from the following cross-examination of Dr. Kemp by counsel for the appellant:
Q. Speak up.
A. It was read to me in evidence that the man on re-entering hospital had abdominal distention, and what is known as meterism, or gas, which correctly means a swelling which would indicate an early ileus.
Q. What you say, of course, appears in the medical chart. There was some distention of his abdomen.
A. Yes, sir.
The medical chart referred to is the "history sheet" which discloses the condition referred to, with respect to which, in the course of his cross-examination of Dr. Fahrni, counsel for the respondent stated, without correction from any quarter,
That history sheet is obviously made up when Mr. Fraser comes back.
The case was expressly put to the jury on this footing by the learned trial judge in his charge, and there was no objection on this point by counsel for the appellant. I think, therefore, it is too late for the appellant to take any other position.
With respect to the activities of the deceased subsequent to his discharge from the emergency ward and prior to his re-entry to the hospital, Dr. Fahrni testified that these could bring about a speeding up of the onset of shock, and further,
Q. Yes?
A. The other thing is that the cervical spine was obviously unstable, and it could have gone on with further displacement and put pressure on the spinal cord. In answer to the question as to whether or not there was any evidence of that happening, the witness said there was none. However, Dr. Naden testified:
Q. There were no neurological signs of any kind or description whatsoever?
A. Not when he was discharged from the hospital or at any other time.
Q. Except the bowel distention.
A. That's not a neurological sign.
Q. It might be a sign of neurological injury, or nerve injury?
A. Yes, I think one would have to say that that is a possibility, but once again in this patient, and it is this patient we are speaking of, in this patient as far as it has been physically possible to demonstrate there was no evidence of neurological change.
He subsequently said with respect to the bowel distention:
There is no evidence that this was caused by nerve injury. It is evidence of nerve irritation, but the evidence could be from nerve irritation by traction on the sympathetic plexus and lower dorsal and upper lumbar region, which is the reason you get a paralytic ileus in abdominal—post-operative abdominal conditions from traction of the sympathetic plexus which is not—which one cannot call injury apart from traction and not injury in the interpretation I make of your question.
There had been, of course, no traction by external means to which the deceased had been subjected prior to his reentry into the hospital, and no evidence at all of any other traction. Without explanation, and the witness gave none, this reference to traction was quite irrelevant. Dr. Naden also said:
Q. Well now, doctor, what I want to know is—and what I want the jury to know—is this, can, in your opinion, a paralytic ileus be brought about by reason of an injury (a) to the spinal cord; (b) by an injury to the sympathetic nervous system?
A. It can be. It can be.
Dr. Fahrni expressed the view that the type of fracture from which the deceased suffered was not one which tended to close the canal of the spine as the head is carried forward, but rather which opened the canal the further the head was taken forward,
and unless the head is taken extremely far forward, there would be no pressure on the cord at all.
Dr. Fahrni also said that when he was called into the case and met the deceased's doctor, Dr. Rennie, at the hospital, he was shown the X-rays which had already been taken. When he testified, therefore, that there would be no pressure on the cord of the deceased unless the head was moved "extremely far forward," he was aware of the nature of the fracture and the dislocation, and with that knowledge he had already testified that the cervical spine of the deceased was "obviously unstable" and "it could have gone on with further displacement and put pressure on the spinal cord."
Dr. Fahrni also said that, according to the X-ray, the dislocation "went one third of a centimetre," which, however, was not the maximum extent of the dislocation; it probably went "a little bit further," at the time of the accident, and "could be pushed forward again by forward flexion of the neck," which was one of the dangers to be avoided. So much so was this the case that when Dr. Fahrni took charge of the deceased, he did not consider it "safe"