Laferrière v. Lawson

Laferrière v. Lawson
Collection
Supreme Court Judgments
Date
1991-03-21
Report
[1991] 1 SCR 541
Case number
21334
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley
On appeal from
Quebec
Subjects
Professional law
Torts
Notes
SCC Case Information: 21334
Decision Content
Laferrière v. Lawson, [1991] 1 S.C.R. 541
Dr. Ray Lawson Appellant
v.
Me Nicole Laferrière in her capacity as
testamentary executor of the
late Mireille Fortier‑Dupuis Respondent
indexed as: laferrière v. lawson
File No.: 21334.
1990: March 22; 1991: March 21.
Present: Lamer C.J.* and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.
on appeal from the court of appeal for quebec
Civil responsibility ‑‑ Medical malpractice ‑‑ Causation ‑‑ Theory of loss of chance ‑‑ Doctor performing biopsy but failing to inform patient of cancerous condition found or follow up on patient's health in appropriate manner ‑‑ Patient later dying of generalized cancer ‑‑ Whether action against doctor can succeed even where it is not proven that patient's fate would have been different absent the doctor's fault ‑‑ Whether theory of loss of chance should be introduced into Quebec civil law in matters of medical responsibility.
Physicians and surgeons ‑‑ Medical malpractice ‑‑ Causation ‑‑ Theory of loss of chance ‑‑ Doctor performing biopsy but failing to inform patient of cancerous condition found or follow up on patient's health in appropriate manner ‑‑ Patient later dying of generalized cancer ‑‑ Whether action against doctor can succeed even where it is not proven that patient's fate would have been different absent the doctor's fault ‑‑ Whether theory of loss of chance should be introduced into Quebec civil law in matters of medical responsibility.
Respondent is testamentary executor of the late D, who consulted appellant about the presence of an abnormal lump in her breast. Appellant performed a biopsy and removed the lump, which was found to be cancerous, but did not inform D of the cancerous condition or arrange any follow‑up treatment. D's health later deteriorated; she was diagnosed as having generalized cancer and underwent surgery and various treatments. She brought an action against appellant for damages, but died before the proceedings had been completed. Respondent continued the suit, which the trial judge dismissed on the merits. The Court of Appeal reversed the decision. The majority of the court found that appellant's fault resulted in the loss of a real and serious chance to benefit from proper medical care, which should give rise to damages.
Held (La Forest J. dissenting): The appeal should be allowed in part.
Per Lamer C.J. and L'Heureux‑Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.: Respondent's claim for damages for anguish and frustration must be accepted, since appellant's fault was directly related to the great, unnecessary psychological stress D faced upon learning that she had gone four years without knowing of her cancerous condition and without undergoing the follow‑up, monitoring and treatment that was appropriate in her case. The loss of chance analysis used to support the claim for damages for physical pain and suffering and premature death is inappropriate, however, at least in cases where death or sickness has already occurred. In such cases classical principles of causation suffice and are essential in order for individual responsibility to attach.
The independent recognition of a lost chance is questionable in all but the exceptional classic cases, and there is certainly no reason to extend such an artificial form of analysis to the medical context, where faults of omission or commission must be considered alongside other identifiable causal factors in determining what has produced the particular result in the form of sickness or death. In France and Belgium, while there is little doctrinal resistance to the application of loss of chance in the classic cases, the theory has been severely criticized when applied in the medical context as being an attempt to avoid the requirement of certain causation. In Quebec, in cases which have dealt with loss of chance in the medical context, the courts have generally focussed on the actual damage which has occurred rather than the lost chance itself, perhaps because of less rigid rules regarding causation. Such an approach, which ensures that the causal link between the fault and the actual situation now experienced by the plaintiff is established at least on the balance of probabilities, is preferable. The plaintiff is aided in establishing his case by presumptions and factual and statistical evidence. In some cases, where a fault presents clear danger for the health and security of the patient and where such a danger materializes, it may be reasonable for a judge to presume the causal link between the fault and such damage, unless there is a strong indication to the contrary.
The rules of civil responsibility require proof of fault, causation and damage. Both acts and omissions may amount to fault and both may be analyzed similarly with respect to causation. Causation in law is not identical to scientific causation, and must be established on the balance of probabilities, taking into account all the evidence: factual, statistical and that which the judge is entitled to presume. Statistical evidence may be helpful as indicative but is not determinative. Even where statistical and factual evidence do not support a finding of causation on the balance of probabilities with respect to death or sickness, such evidence may justify a finding of causation with respect to lesser damage, such as shorter life or greater pain. If, after consideration of all the factors, a judge is not satisfied that the fault has, on his or her assessment of the balance of probabilities, caused any real damage, then recovery should be denied.
While the evidence here amply supports the trial judge's finding that appellant's fault could not be said to have caused D's death seven years after the first diagnosis of breast cancer, she experienced a type of psychological suffering directly related to appellant's failure to inform his patient of her condition. Further, appellant's failure to follow up on his patient probably denied D the benefit of earlier treatment which would have translated into some real improvement in her condition, and this deprivation should be recognized and compensated.
Per La Forest J. (dissenting): The appeal should be dismissed for the reasons given by Jacques J.A. Civil law recognizes that the damage resulting from loss of chance is compensable in this case. Despite an inclination to award more modest damages, the opinion of the majority of the Court of Appeal should stand on this question.
Cases Cited
By Gonthier J.
Referred to: Brabander v. Goulet, [1985] C.A. 36; Wilson v. Rowswell, [1970] S.C.R. 865; Cass. civ. 1st, May 31, 1988, Bull. civ. 1988, I, no 165, p. 114; Cass. civ. 1st, October 11, 1988, Bull. civ. 1988, I, no 281, p. 192; Cass. civ. 1st, March 29, 1989, Bull. civ. 1989, I, no 147, p. 97; Cass. civ. 1st, June 7, 1989, Bull. civ. 1989, I., no 230, p. 154; Cass. civ. 1st, January 10, 1990, Bull. civ. 1990, I, no 10, p. 8; Cass. civ. 1st, February 7, 1990, Bull. civ. 1990, I, no 39, p. 30; Brussels, February 12, 1957, Pas. 1958, II, 1; Liège, 7th Ch., November 24, 1971, unreported, R.G. no 1201/70; Brussels, January 19, 1965, Pas. 1966, II, 13; Brussels, 2nd Ch. civ., October 22, 1982, unreported, appeal dismissed Cass. 1st Ch., January 19, 1984, Pas. 1984, I, 548; Tardif v. Laverrière, Sup. Ct. Mégantic, No. 6210, November 10, 1976 (summarized at [1976] C.S. 1803); Grenier v. Gervais, [1950] Que. K.B. 60; Lacourcière v. Laplante, [1976] C.A. 433; Beaupré v. Joly, [1971] C.S. 199; Sol‑Air B.G. Inc. v. Marsh & McLennan, [1988] R.R.A. 206; Lachambre v. Perreault (1983), [1990] R.R.A. 397; Zuk v. Mihaly, [1989] R.R.A. 737; Gburek v. Cohen, [1988] R.J.Q. 2424; Lapointe v. Hôpital Le Gardeur, [1989] R.J.Q. 2619; Snell v. Farrell, [1990] 2 S.C.R. 311; Shawinigan Engineering Company v. Naud, [1929] S.C.R. 341; Morin v. Blais, [1977] 1 S.C.R. 570; Laurentide Motels Ltd. v. Beauport (City), [1989] 1 S.C.R. 705; J.E. Construction Inc. v. General Motors du Canada Ltée, [1985] C.A. 275; Dodds v. Schierz, [1986] R.J.Q. 2623; Hotson v. East Berkshire Area Health Authority, [1987] A.C. 750.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 7 .
Civil Code of Lower Canada, art. 1205.
Authors Cited
Aubry et Rau. Droit civil français, 8e éd., t. VI‑2, Responsabilité délictuelle. Par Noël Dejean de la Bâtie. Paris: Librairies Techniques, 1989.
Anrys, Henri. La responsabilité civile médicale. Bruxelles: Ferdinand Larcier, 1974.
Baudouin, Jean‑Louis. La responsabilité civile délictuelle. Cowansville: Yvon Blais Inc., 1985.
Boré, Jacques. "L'indemnisation pour les chances perdues: une forme d'appréciation quantitative de la causalité d'un fait dommageable", J.C.P. 1974.I.2620.
Chabas, François. Annotation of Cass. crim., January 9, 1979, J.C.P. 1980.II.19272.
Chabas, François. "Vers un changement de nature de l'obligation médicale", J.C.P. 1973.I.2541.
Chartier, Yves. La réparation du préjudice dans la responsabilité civile. Paris: Dalloz, 1983.
Dorsner‑Dolivet, Annick. Contribution à la restauration de la faute, condition des responsabilités civile et pénale dans l'homicide et les blessures par imprudence: à propos de la chirurgie. Paris: L.G.D.J., 1986.
Durry, Georges. "Responsabilité civile" (1967), 65 Rev. trim. dr. civ. 153.
Hennau‑Hublet, Christiane. L'activité médicale et le droit pénal: Les délits d'atteinte à la vie, l'intégrité physique et la santé des personnes. Bruxelles: Émile Bruylant, 1987.
Honoré, A. M. Causation and Remoteness of Damage, ch. 7, International Encyclopedia of Comparative Law, vol. XI, Torts. Edited by André Tunc. Tubingen, West Germany: J.C.B. Mohr, 1971.
Mémeteau, Gérard. "Perte de chance en droit médical français" (1986), 32 McGill L.J. 126.
Molinari, Patrick. "La responsabilité civile de l'avocat" (1977), 37 R. du B. 275.
Penneau, Jean. La responsabilité médicale. Paris: Sirey, 1977.
Pineau, Jean et Monique Ouellette. Théorie de la responsabilité civile, 2e éd. Montréal: Thémis Inc., 1980.
Savatier, René. "Le droit des chances et des risques, dans les assurances, la responsabilité civile dans la médecine, et sa synthèse dans l'assurance de responsabilité médicale" (1973), 44 Rev. gén. ass. terr. 457.
Savatier, René. "Une faute peut‑elle engendrer la responsabilité d'un dommage sans l'avoir causé?", D.1970.Chron.123.
Tancelin, Maurice. Des obligations: contrat et responsabilité, 4e éd. Montréal: Wilson & Lafleur, 1988.
Tourneau, Philippe le. La responsabilité civile, 3e éd. Paris: Dalloz, 1982.
Vacarie, Isabelle. "La perte d'une chance", [1987] 3 R.R.J. 903.
Viney, Geneviève. Traité de droit civil, t. IV, Les obligations: la responsabilité‑‑conditions. Paris: L.G.D.J., 1982.
APPEAL from a judgment of the Quebec Court of Appeal, [1989] R.J.Q. 27, 20 Q.A.C. 52, 49 C.C.L.T. 309, reversing a decision of Deslongchamps J. dismissing respondent's action for damages against appellant. Appeal allowed in part, La Forest J. dissenting.
Allan R. Hilton, Julie Chenette and Serge Gaudet, for the appellant.
Lynne Kassie and Jean‑Pierre Sheppard, for the respondent.
//Gonthier J.//
The judgment of Lamer C.J. and L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin JJ. was delivered by
Gonthier J. -- This case deals with the legal consequences of a doctor's failure to inform his patient of a cancerous condition and, subsequently, to follow up on the patient's health in the appropriate manner. The Court is asked to consider whether an action can succeed even where it is not proven that the patient's fate would have been different absent the doctor's fault. In particular, the Court must examine the theory of "perte de chance", or loss of chance, and determine whether it should be introduced into the civil law of Quebec in matters of medical responsibility.
I -- Facts and Proceedings
The respondent, Me Nicole Laferrière, acts in her capacity as testamentary executor of the late Mrs. Mireille Fortier-Dupuis. Mrs. Dupuis began proceedings against the appellant, Dr. Ray Lawson, in November 1975, claiming the sum of $150,000 as damages arising out of the alleged non-fulfillment by Dr. Lawson of his obligations as a medical professional. Mrs. Dupuis died in 1978, before these proceedings had been completed. She was, however, able to testify before her death and did so, at the request of the appellant, on June 21, 1976. Following a judgment of Guérin J. on September 23, 1981, Me Laferrière was authorized to continue the suit on behalf of Mrs. Dupuis. A re-amended declaration, dated November 23, 1983, claimed a total of $250,000.
In 1970, Mrs. Dupuis, at that time 48 years of age, became increasingly concerned about the presence of an abnormal nodule or lump in her right breast. She consulted her gynecologist who recommended a mammogram, the results of which proved negative. Apparently, these results did not allay Mrs. Dupuis' anxiety. In March 1971, she read an article about Dr. Ray Lawson in the weekend magazine of a Montréal newspaper. She noted that he was an international authority on the treatment of breast cancer, that he used the most up-to-date equipment for the detection of breast cancer and that his progressive approach to treatment of such cancer avoided any unnecessary removal of breast tissue. Mrs. Dupuis contacted Dr. Lawson at his Westmount Breast Centre and made an appointment for March 10, 1971.
At the Centre, Mrs. Dupuis underwent a number of diagnostic procedures, including mammogram and thermogram. As a result of these tests, Dr. Lawson recommended an excisional biopsy, or surgical removal of the abnormal mass for more accurate diagnosis. Mrs. Dupuis accepted this proposal.
On April 12, 1971, Mrs. Dupuis was admitted to the Royal Victoria Hospital. Two days later, Dr. Lawson performed the surgery, described in the hospital records as "breast biopsy and excision of lump of right breast". The pathology report, dated April 20, 1971, indicated "intraductal carcinoma with infiltrative growth", that is, cancer of the breast.
Mrs. Dupuis was discharged from the hospital on April 15, 1971. She later saw Dr. Lawson at an out-patient clinic and discussed routine matters such as the healing of the scar left after surgery. According to the trial judge's findings, she was not informed that the lump in her breast was cancerous, and she was not advised as to the appropriate post-operative treatments. No long-term follow-up was arranged for her by Dr. Lawson.
From 1971 to 1974, Mrs. Dupuis underwent regular gynecological check-ups and had no cause during that time to worry about her health. In the fall of 1974, her health began to deteriorate and by March 1975, an eyelid disorder (known as the Claude Bernard-Horner syndrome) developed which caused her doctors to suspect that a cancerous condition had taken hold. One of her doctors looked more closely into his patient's history and by obtaining records from the Royal Victoria Hospital discovered the 1971 diagnosis of cancer of the breast. This information was made known to Mrs. Dupuis in April, 1975.
Subsequently, Mrs. Dupuis underwent surgery to remove nodules which had newly appeared on the right breast. This intervention revealed systemic metastases or generalized cancer requiring removal of the ovaries. Following surgery, Mrs. Dupuis received various treatments, including chemotherapy. She died on January 27, 1978.
II -- Judgments of the Courts Below
The Superior Court
Deslongchamps J. first reviews the facts and concludes that the appellant breached two of the duties traditionally expected of a medical professional: the duty to inform the patient and the duty to follow up on the patient's condition.
As to the first duty, the learned trial judge states that the appellant neither informed the patient that she had cancer of the breast nor advised her as to the various ways in which it could be treated:
[translation] I accordingly conclude that the defendant did not inform Mrs. Dupuis that she had cancer. In the case at bar this duty to inform was all the more crucial as there were various ways of treating breast cancer in 1971. By depriving Mrs. Dupuis of this information on her state of health, the defendant also deprived her of her right to choose the treatments which might have been available to her at that time.
Moreover, even if I had concluded that the defendant informed Mrs. Dupuis, there is nothing in the evidence on which I can conclude that the defendant discussed with Mrs. Dupuis, or informed her of, the various treatments available.
The defendant accordingly breached his duty to inform.
He observes with regard to the second duty that the appellant never initiated nor suggested any follow-up, despite the fact that such would have been the normal procedure regardless of the method of treatment selected by doctor and patient.
Turning to proof as to the causal link, Deslongchamps J. approaches the problem in the following way:
[translation] As the defendant's fault has been established, it remains to be determined whether that fault was the cause of the damage alleged, namely the premature death of Mrs. Dupuis and the pain, anxiety, hardship and loss of enjoyment of life she may have undergone.
He then reviews the expert evidence and notes that in 1971 there were at least two schools of thought on how to treat breast cancer. The standard procedure at that time was to perform a radical mastectomy, removing the tumor along with surrounding breast tissue and nodes, and to follow up with irradiation. A non-conformist but medically recognized procedure favoured by the appellant involved removing the tumor alone and employing no irradiation. Expert opinion at the time was, in the opinion of the trial judge, divided as to the relative merits of these two procedures and showed no statistically relevant difference in survival rate.
Deslongchamps J. concludes as follows:
[translation] All this expert evidence, including the statistical results obtained regarding the survival of patients suffering from breast cancer, cannot persuade me that it was probable in 1971 that Mrs. Dupuis' chances of survival would have been greater if she had undergone a treatment other than that given by the defendant.
Unfortunately, all the scientific evidence only confirms the insidious and unforeseeable nature of the development of a cancer, including the degree and duration of the suffering and hardship associated with such an illness.
The Court accordingly concludes that there is no causal link between the defendant's fault and the damage claimed by the plaintiff.
The learned trial judge accordingly rejects the respondent's action on the merits. He acknowledges, however, the injustice of requiring the respondent to pay the substantial costs of the action given the clear fault of the appellant, and, accordingly, he accedes to the respondent's claim for costs.
The Court of Appeal
The appeal was heard by a bench composed of Vallerand and Jacques JJ.A. and Moisan J. (ad hoc) (Laferrière v. Lawson, [1989] R.J.Q. 27). All three judges gave reasons, and together they provide an excellent discussion of the complicated issues which we encounter in this case. I will first summarize the concurring opinions of Jacques J.A. and Moisan J. and will then treat the dissenting opinion of Vallerand J.A.
Jacques J.A. reviews the facts of the case without significant variation from the account provided by the trial judge. He notes that the trial judge based his decision on the absence of a causal link between the fault of the appellant and the damage suffered by Mrs. Dupuis. This prompts Jacques J.A. to reconsider the case by focussing on the head of damages referred to as "la perte d'une chance" or the loss of a chance, a characterization which was not directly considered by the trial judge.
Quoting French and Quebec sources, Jacques J.A. points out that loss of chance was initially viewed with circumspection but is now a recognized head of damages. He states that the classic case of loss of chance arises where a lawyer or notary allows a client's rights to lapse (he cites, by way of example, Brabander v. Goulet, [1985] C.A. 36), a situation which is also recognized in the common law (and here he cites Wilson v. Rowswell, [1970] S.C.R. 865).
Turning to the facts of this case, Jacques J.A. states that it is clear that Mrs. Dupuis lost a chance to obtain the treatment that her condition required and that this loss was definitive. More specifically, the failure of her doctor to inform her properly and to follow up on her condition meant that she could not opt for the potential benefits of irradiation and chemotherapy treatments and could not benefit from the earliest discovery and treatment of any recurrence of the cancer. The fault of Dr. Lawson therefore resulted in the loss of a real and serious chance to benefit from proper medical care.
In the opinion of Jacques J.A., the extent of the damage is to be determined according to the likelihood of success of such proper medical care. Had cure been a certainty, the damages would have been pitched at the maximum level. In the present case, medical science held out some hope, however small. After acknowledging the difficulties inherent in quantifying damage, he estimates the value of the lost chance at $50,000.
In coming to this conclusion, he stresses that his observations are not inconsistent with the findings of the trial judge. First, he notes, at p. 36, that the fault which deserves attention is not the choice of a surgical technique in 1971 but rather the failure to inform the patient and follow up on her condition:
[translation] The fault alleged against Dr. Lawson is not that he chose one type of procedure rather than another. The fault is that he failed to inform the patient of her condition, with the result that she was unable to take advantage of the available care.
Furthermore, Jacques J.A. stresses that the trial judge dealt only with one aspect of the damage, that which was said to be linked to the choice of the proper surgical procedure in 1971. The conclusion regarding the absence of a causal link is not disputed at this point in the analysis. Jacques J.A. differentiates his approach from that of the trial judge, at pp. 36-37:
[translation] [The trial judge's] conclusion is not challenged on appeal, as the appeal deals only with a particular aspect of the damage. The probability that available care would have been more or less successful is only one of the factors and relates only to assessing one aspect of the damage. Apart from that aspect, there is what was described by Dr. Crile as follows:
And I would like to say in conclusion that it is worthwhile to have patients seen and treated early -- it is the only thing we know that if [sic] of any good -- and I think that with the simplification of the treatment of breast cancer, women are beginning to loose [sic] their fear of the treatment of breast cancer and, perhaps, they will come earlier. And that will be a significant way of improving the survival.
This damage is all that is at issue on appeal. As this specific aspect was not dealt with by the trial judge, I am of the view that there is a basis for intervening.
Mrs. Dupuis lost this opportunity to have follow‑up care and take advantage of available treatment.
As noted earlier, Jacques J.A. then proceeds to establish the extent and value of the chance which Mrs. Dupuis lost, focussing not on the consequences of the surgical procedure chosen by Dr. Lawson in 1971 but on the benefits which would have accrued to her had the proper information and follow-up been provided.
I turn now to the concurring reasons of Moisan J.
He introduces his reasons by noting that the evidence indicated that Mrs. Dupuis was the type of person who, properly informed of the nature of her illness, would have done everything possible to protect her health. In his view, she would have ensured that she had adequate follow-up for herself and would have accepted such appropriate treatments as were available. The difficulty in this case, in his view, lies not in the facts but in the law, particularly as concerns the notion of loss of chance.
Moisan J. takes care first to define what he understands by the word "chance". He puts aside a definition of chance as "blind luck" and chooses instead a definition which can be described as an opportunity whose realization is linked to factors such as hard work, determination, information and decision-making. Such a chance is larger or smaller depending on whether the appropriate action is taken at the opportune moment. And it can only be taken where one is aware of the existing situation and the risks which surround it.
He observes that Mrs. Dupuis was unaware of the true state of her health, of the serious risks associated which applied to her case, and of the means at her disposal in order to ward them off. Accordingly, she could not take advantage of the chance which presented itself for early detection and treatment of any new cancer. This amounted to damage linked to the fault of the doctor.
He then addresses the objections to this approach. It was argued that there was neither certainty nor probability that, even with all the information and means at her disposal, Mrs. Dupuis would have succeeded in prolonging her life. He agrees that there was no certainty, but he questions the view that positive results were simply possible and not probable. He notes that even in 1971 medical science had many tests and treatments at its disposal and that these represented a chance, or an opportunity in his terms, to be cured, or at least to prolong one's life. To deny this would be to assume that the methods had no value or, at best, that they represented no more than pure chance or blind luck, and Moisan J. is not prepared to assume either. At page 38, he states:
[translation] A prognosis is difficult to make in situations where a person's health and life are at stake. Maintaining health, a return to health, the prolonging of life are influenced by a host of factors such as heredity, early treatment, positive or negative reaction to treatment and undoubtedly a great many other factors. Even assuming that all the factors involved may have complicated, even conflicting or negative, influences on the outcome, no one can absolutely exclude the probability of greater longevity or even the possibility of a cure . . .
The difficulty of determining the more or less great possibility or, if you like, the more or less slim probability -- these concepts are in my view so close to each other that they sometimes overlap -- results from the fact that one has to speculate on the consequences of the events which might have occurred but did not occur and necessarily will not occur.
I hope that I do not misrepresent the learned judge in interpreting these statements as meaning that whatever the likelihood of possible cure or probable improvement one cannot deny that an opportunity presented itself, and that it was lost as a result of the doctor's fault. Further, Moisan J. acknowledges the difficulty inherent in speculating on what might have been, a particularly demanding task when dealing with events which are future and uncertain, but he stresses that courts regularly perform this task. In such cases, judges refer to well-known notions such as [translation] "the behaviour of a reasonable and prudent man, the natural order of things, the usual sequence of cause and effect and, in short, the normal and ordinary course of events" (p. 39), and they use such notions to establish, at p. 39:
[translation] . . . what the situation would have been if the event involving fault had not given it a different direction. Rejecting extreme positive or negative scenarios, seeking an objective, broad and general assessment and not a subjective estimate closely connected to the victim, they tend to arrive at the situation that would reasonably and probably have prevailed.
He also acknowledges that the task is particularly difficult in medical cases where so many unknown factors are at work. However, this does not, in his view, license the courts to abandon the task, adopt the most pessimistic scenario and deny that the patient had any chance or opportunity to improve her condition.
Moisan J. criticizes the trial judge for giving insufficient consideration to the opportunity which Mrs. Dupuis missed as a result of Dr. Lawson's inaction. There was too much attention paid to the choice of a particular surgical method in 1971 and to the insidious and often fatal character of the disease. Moisan J. states emphatically that in his view Mrs. Dupuis had a reasonable and probable chance to improve her lot had she been informed of her condition and correctly advised as to the proper preventive and curative measures to take.
By way of final comments, he deals with the question of whether the loss of a chance or opportunity can by itself give rise to damages, that is, independently of any prediction as to what the situation might have been in the absence of the alleged fault. In his view, this question should be answered in the affirmative. The loss of a chance -- understood in his terms as an opportunity -- is a result or a consequence. It is not a cause, as some have argued.
In his view, the cause in this case was Dr. Lawson's failure to inform and follow up, and the consequence of this fault was the loss of Mrs. Dupuis' right to make an informed decision regarding the action she should take to promote her health. Moisan J. concludes that this was [translation] "an unlawful deprivation of a right and of a freedom of choice, caused by fault" (p. 40), and he relates this deprivation to s. 7 of the Canadian Charter of Rights and Freedoms .
He summarizes his reasons at p. 40:
[translation] In my view loss of chance is first and foremost loss of the exercise of a right, in this case the right to dispose of one's person, the right to take decisions affecting one's life and health oneself. The Court must provide a penalty for such a loss: it must order at least nominal compensation.
It must then go further and consider the possible positive results that might follow from the situation which would have existed if the fault had not been committed.
In coming to a decision on the damages appropriate in such a case, Moisan J. points to the great frustration and anguish which Mrs. Dupuis must have felt upon learning that her cancer was in an advanced stage and that it might have been effectively treated and perhaps cured had it been dealt with properly at an earlier time. Taking this psychological damage together with the loss of chance, he expresses his agreement with the global award of $50,000 suggested by Jacques J.A.
The dissenting reasons of Vallerand J.A. address the arguments put forward in both majority opinions. The learned judge begins by setting out the factual findings at trial, by which he feels bound, and he relates these to the standard civil law approach to civil liability, at p. 29:
[translation] However appropriate the follow‑up and treatment that might have been undertaken at the outset may have been, it is not probable and, needless to say, not certain that a remission, much less a cure would have been the outcome.
Those are the facts which the trial judge accepted at the conclusion of a careful study of the evidence, and disregarding the strenuous objections of the respondent physician, I can find no reason to intervene.
Having thus found that the surgeon committed two clear faults, the judgment a quo nevertheless dismisses the action essentially on the ground that in civil law that which is neither certain nor probable but merely possible -- here, a remission or cure -- is not proven, and as such cannot be the basis for a causal connection between the fault and the damage. [Emphasis in original.]
It is not surprising, then, that he is unable to subscribe to the view of Moisan J. who was inclined to believe that, appropriately informed and correctly followed, Mrs. Dupuis would have had a reasonable and probable opportunity to improve her condition. He notes that Jacques J.A., unlike his colleague Moisan J., saw no probable improvement or cure absent the doctor's fault. On this point, Vallerand J.A. agrees. His argument diverges on the question of whether to accept the theory of loss of chance.
He notes that the loss of chance theory has been applied by the Cour de cassation in France in sometimes ambiguous fashion and that it has attracted mixed response from French doctrinal writers. He summarizes the theory in the following way, at p. 29:
[translation] In short, if I have understood this theory correctly, it concedes that a party cannot obtain compensation for damage which is not probably or certainly the consequence of the fault, but may on the other hand obtain compensation for the quite different damage represented by the simple loss of a chance for a better outcome. Once a mere possibility is accepted, that possibility is transformed into a loss of chance which is itself connected with the original fault according to the traditional rules of causation. [Emphasis in original.]
While admitting that the theory is not without seductive qualities, he asserts that the courts of Quebec are not bound by developments in the civil law of France, however interesting they might be. The civil law of Quebec, in his view, accepts nothing less than proof of the causal link on the balance of probabilities. He points out that in the Brabander and Wilson cases, supra, referred to by Jacques J.A., the successful realization of the chance was probable, and classical rules regarding causation therefore applied. If loss of chance is to be accepted at all, it can only be as a head of damage, not as a means of shoring up inadequacies in the proof regarding the causal link.
Vallerand J.A. cites at some length and adopts the arguments of René Savatier ("Le droit des chances et des risques, dans les assurances, la responsabilité civile dans la médecine, et sa synthèse dans l'assurance de responsabilité médicale" (1973), 44 Rev. gén. ass. terr. 457, and "Une faute peut-elle engendrer la responsabilité d'un dommage sans l'avoir causé?", D.1970.Chron.123, at pp. 124-25) and Geneviève Viney (Traité de droit civil, vol. IV, Les obligations: la responsabilité--conditions (1982), at p. 437). Both of these respected French authors are critical of the unnecessarily artificial nature of the loss of chance theory.
Taking into consideration the unchanged status of the classical rules of causation in the civil law of Quebec and the uncertain reception of the new theory in France, he declines the opportunity to innovate by recognizing loss of chance, preferring to leave that radical step to the legislator.
He then looks briefly at loss of chance as a head of damages and notes that it is properly recognized here. He points out that Jean-Louis Baudouin (La responsabilité civile délictuelle (1985)) discusses loss of chance in the chapter on "le dommage" (damage) and makes no mention of it under his discussion of "lien de causalité" (causal link).
Turning finally to the question of damages in the case before him, Vallerand J.A. states that even if he had been inclined to award damages based on the loss of chance he would not have awarded as much as his colleagues. He would, however, be prepared to recognize the frustration and anguish which Mrs. Dupuis no doubt felt on learning that but for the omissions of her doctor things might have been different. This damage is not the loss of a chance but the actual psychological suffering. He values this damage at $5,000.
III -- Issues
In this action the respondent seeks the following damages, as described in the re-amended declaration, dated November 23, 1983:
[translation] Mrs. Dupuis suffered incalculable damage, including permanent and constant anguish, suffering and discomfort;
For pain, anxiety, hardship and loss of enjoyment of life, [the respondent] is claiming [from the appellant] the sum of $150,000;
For the premature death of Mrs. Dupuis, [the respondent] is claiming [from the appellant] the sum of $100,000.
I am inclined to agree with Vallerand J.A. and, effectively, a unanimous Court of Appeal that the claim for anguish and frustration must be accepted. This aspect of the damages was not dealt with by the trial judge. There is no doubt in my mind that the appellant's fault was directly related to the great, unnecessary psychological stress which Mrs. Dupuis faced upon learning that she had gone four years without knowing of her cancerous condition and without undergoing the follow-up, monitoring and treatment that was appropriate in her case. I will discuss the quantum of this head of damages later in my reasons.
On appeal, the damages relating to physical pain and suffering and premature death were, given the trial judge's findings, argued primarily on the basis of loss of chance. As I have already noted, a majority of the Court of Appeal was willing to recognize damages on this basis, and it is necessary for this Court to reconsider such apparently innovative reasoning.
I propose to analyze the matter in the following way. I will first attempt to define loss of chance, and this will necessarily involve a consideration of the voluminous authority on the subject which has emerged, principally in France and Belgium. Recently the courts and commentators in Quebec have had occasion to comment on loss of chance, and I will be particularly interested in those opinions before coming to a decision on whether, or perhaps to what extent, loss of chance now forms a part of the law of Quebec. This will, of course, involve a critical analysis of loss of chance, all the while keeping in mind what has, until now, been considered the classical approach to civil responsibility.
In the end, I conclude that the loss of chance analysis recommended by the respondent is inappropriate, at least in cases where death or sickness has already occurred. In such cases, classical principles of causation suffice, and, further, are essential in order for individual responsibility to attach. I deal then with the facts of this case and consider the question of appropriate damages.
IV -- Analysis
1. Loss of Chance
France and Belgium
Loss of chance has been the subject of a great deal of analysis in France and Belgium where it has also been admitted in numerous cases of medical responsibility. Accordingly, I will explore loss of chance largely through the excellent literature on this subject which has been published in those countries. It discloses two principal schools of thought on the matter. Their differences turn essentially on whether loss of chance is to be envisaged as merely a type of damage or whether its true effect in medical liability cases is to undermine causality as an essential element of civil liability and it is therefore to be rejected as contrary to established principle.
Indeed, loss of chance is a type of damage. It is the damage which results from the loss of an opportunity either to realize a benefit or to avoid an injury. It certainly poses special difficulties regarding the analysis of the causal link, but it is first and foremost a type of damage, and I will deal with it initially in that context.
Even when examined as a type of damage, loss of chance is acknowledged to be theoretically troublesome. As a rule, the damage must be direct, present and certain (Philippe le Tourneau, La responsabilité civile (3rd ed. 1982), at p. 167). Courts are hesitant to award damages which are hypothetical, possible, future and uncert