DATE: 20030619

DOCKET: C37408

COURT OF APPEAL FOR ONTARIO

MCMURTRY C.J.O., O’CONNOR A.C.J.O. and WEILER J.A.

B E T W E E N:

LOUANNE CAZA

Marc J. Somerville

and Wayne Brynaert

Plaintiff/Respondent

for the appellant

• and -

KIRKLAND AND DISTRICT HOSPITAL and CHARLES W. CASSELMAN

Paul Pape

for the respondent

Defendants/Appellant

Heard: May 12, 2003

On appeal from the judgment of Justice Robert P. Boissonneault, sitting with a jury, dated November 19, 2001.

O’CONNOR A.C.J.O.:

Overview

1The respondent, Louanne Caza, sued the appellant, Dr. Charles Casselman, for negligently administering a spinal anaesthesic causing sensory loss and pain in her buttock and right thigh. After a trial presided over by Boissonneault J., a jury found Dr. Casselman liable and awarded Ms. Caza damages.

2This appeal is against the finding of liability only. The grounds of appeal addressed in these reasons relate to the sufficiency of the evidence supporting the finding of causation, the adequacy of the trial judge’s charge and his answer to a question from the jury. In my view, the jury’s verdict was reasonable and the errors alleged did not result in an unfair trial or a miscarriage of justice. Accordingly, I would dismiss the appeal.

Facts

3Ms. Caza was scheduled to undergo an abdominal hysterectomy and Dr. Casselman was to be the anaesthetist. He met Ms. Caza the evening prior to the scheduled surgery. Following a discussion, Ms. Caza agreed to have the hysterectomy under a spinal rather than a general anaesthesic.

4On the following morning, May 27, 1996, the appellant administered a spinal anaesthetic and the operation was completed.

5There were several significant conflicts between the evidence of Ms. Caza and Dr. Casselman about what happened with respect to the administration of the spinal anaesthetic.

6Ms. Caza testified that Dr. Casselman did not say anything to her about the risks of nerve damage during the pre-operative discussion. Dr. Casselman said that he did, but that although it was his standard practice to chart such a discussion, he did not do so on this occasion.

7Both Ms. Caza and Dr. Casselman agreed that Dr. Casselman started the procedure by having Ms. Caza lie on her side and that Dr. Casselman’s first three attempts at inserting the spinal needle in the subarachnoid space of Ms. Caza’s spine were unsuccessful.

8Ms. Caza testified that on the third attempt, she complained to Dr. Casselman that her leg was sore and that it hurt down the side of her right thigh. She said Dr. Casselman did not question her about the nature of the pain.

9Ms. Caza testified that after the third attempt, Dr. Casselman had her sit up and lean forward over a pillow. He tried to insert the needle a fourth time and she told him that her leg was getting very sore. Again, he did not inquire about the nature of the pain, but did tell her that if he didn’t get the needle in soon, he would have to give her a general anaesthetic.

10Ms. Caza testified that when he inserted the needle on the fifth attempt, “I could feel it and my leg just caught on fire. It burned, it hurt, it did everything and I told him that”.

11Nevertheless, Dr. Casselman persisted and eventually he did inject the anaesthetic. Her leg went numb and the surgery followed.

12Dr. Casselman’s evidence about what happened from the third attempt onward differed significantly. He testified that after he asked Ms. Caza to sit up, he was successful in inserting the spinal needle in the subarachnoid space on the first attempt in that position and the fourth overall. He testified that he had no recollection of Ms. Caza complaining about pain, nor did he chart any complaint. He testified that he would have noted a pain that sounded like paresthesia, which is a tingling pain that could signify nerve damage. He was confident that paresthesia did not happen.

13Dr. Casselman testified that if a patient said that he or she felt a pain that seemed like paresthesia, he would stop injecting and assess the situation.

14At trial, which was five and a half years after the surgery, it was accepted that Ms. Caza suffered from continuing pain and a loss of sensitivity in her buttock and right thigh. There was no evidence to suggest that Ms. Caza suffered from this condition before the surgery. An important factual issue at trial was when this condition first arose.

15Ms. Caza testified that she began experiencing the pain and loss of sensitivity immediately after the surgery. She said that following the ebbing of the anaesthetic, she had pain everywhere and that she complained to the hospital staff. However, there was no record that she complained of the specific injury that gave rise to the litigation. Ms. Caza also testified that she told her family doctor about the pain in her buttock, hip and thigh during a visit three weeks after the surgery. Again, there was no record of this complaint. The first documented complaint that Ms. Caza was experiencing sensory problems and pain in her buttock and right leg was not made until she visited her family doctor on August 27, 1996, three months after the surgery. In the interim, she had made several visits to doctors.

16Ms. Caza’s position throughout has been that her injury is the result of damage to a nerve root which was inflicted when Dr. Casselman continued the anaesthetic procedure after she complained of pain. Dr. Casselman, on the other hand, asserts that Ms. Caza’s injury is caused by a condition known as meralgia paresthica, which is an entrapment or compression of the lateral femoral cutaneous nerve that is completely unrelated to the spinal anaesthetic procedure.

17Ms. Caza’s position was supported in varying degrees of certainty by the evidence of a doctor and by reports from three doctors.

18In support of his position, Dr. Casselman relied on the evidence of three doctors and one report from a doctor who had treated Ms. Caza. Dr. Casselman attached particular importance to the evidence of Dr. Richard Moulton, a neurologist who testified that it was not anatomically possible that Ms. Caza’s complaints could have been caused by the spinal injection.

19The first question left with the jury was: “Was there any negligence on the part of the defendant which caused injury to the plaintiff?” The jury answered, “We the jury feel that on the balance of probabilities, the plaintiff’s injuries were caused by Dr. Casselman’s negligence in failing to investigate and document the complaint of pain by Louanne Caza and/or abandon the procedure.”

The Issues

20It is useful to begin by pointing out what is not at issue on this appeal. The appellant does not challenge the way that the trial judge described the standard of care to the jury, nor does he argue that there was not sufficient evidence, which if accepted, could support a finding that the standard was breached.

21The parties were ad idem as to the standard of care required of the appellant in administering a spinal anaesthetic. In his factum on this appeal, the respondent’s counsel summarized that standard as follows:

Where a patient undergoing a spinal anaesthetic experiences paresthesia or unusual pain, which is not transient in nature, that pain warns of risk of neural injury. The doctor must question the patient and investigate the source of the pain, document the pain and reassess the procedure undertaken. In the event that the pain remains, the doctor must consider ending the procedure, consulting a more experienced anaesthesiologist, switching to a general anaesthetic or canceling the surgery altogether. The doctor does not persist with the procedure in the face of such pain.

22The respondent’s evidence, if accepted, disclosed a breach of the above standard and the jury’s finding of negligence came squarely within it.

23There are three issues that I address in these reasons:

a) Was there sufficient evidence to support a finding that the appellant’s negligence caused the respondent’s injury?;

b) Was the trial judge’s charge so defective as to necessitate a new trial; and

c) Did the trial judge err in answering a question from the jury?

24The appellant challenged certain evidentiary rulings made by the trial judge during the trial. However, the appellant’s arguments in this area were not pursued with vigour and were such that, even if accepted, would not warrant interference by this court.

Analysis

(a) Causation

25The appellant argues that there was insufficient evidence upon which a properly instructed jury could reasonably have found that the spinal anaesthetic administered by the appellant caused the respondent’s injury.

26In support of his argument, the appellant relies on his own evidence that the appellant did not complain of pain at the time of the surgery and on what he alleges are the weaknesses in the respondent’s evidence that the onset of her condition was at the time of the surgery. The appellant points to the fact that there is no record of a complaint until three months later and suggests that if the respondent had suffered the significant and painful injuries she alleges, she would have complained much sooner and there would have been a record of the complaint.

27The appellant also relies heavily on the evidence of Dr. Moulton, the Head of Neurosurgery at St. Michael’s Hospital in Toronto. Dr. Moulton testified that the respondent’s theory of neural root damage having occurred during the respondent’s spinal anaesthetic was not anatomically possible because the respondent’s physical symptoms were inconsistent with such an injury. The respondent did not experience motor loss or weakness as he would have expected if the spinal injection had caused the injury. Moreover, the location of the respondent’s sensory loss did not conform with that which would result from a neural root injury. Dr. Moulton testified that the respondent’s injury was entirely consistent with the condition known as meralgia paresthica, a condition unrelated to the spinal injection administered by the appellant. The appellant emphasizes that Dr. Moulton’s evidence was not seriously challenged on cross-examination nor was it rebutted by other evidence.

28There was, however, evidence to support the respondent’s theory of neural damage. First, there is the respondent’s evidence concerning her complaints of serious pain at the time of the spinal injection and immediately after the operation. This evidence, if accepted, connected the onset of the respondent’s condition to the administration of the spinal anaesthetic. There was no suggestion that the respondent had a pre-existing condition that could have caused the pain.

29In finding that the appellant was negligent, the jury obviously accepted the respondent’s evidence about what happened at the time the spinal anaesthetic was administered. It was also open to the jury to accept her evidence about the onset of pain which linked her injury to the spinal injection.

30Moreover, there was medical evidence that the nature of the respondent’s condition – chronic rather than temporal – pointed to neural injury rather than meralgia paresthica.

31In addition, the medical evidence relied upon by the respondent supported the theory of neural injury. Dr. Bodley an anaesthetist, testified that the pain in the respondent’s right thigh had characteristics suggesting that it developed from nerves that had been injured. Dr. Meloff, a neurologist, opined that the persistent pain probably was due to nerve root irritation and it likely was caused by the spinal anaesthetic. The weight of his opinion, however, was diminished because he referred to the source of the sensory impairment as conforming to the S-2, S-3 nerve root source rather than the L-2, L-3, which is the location where the appellant injected the spinal anaesthetic. Whether this reference by Dr. Meloff was due to inadvertence is not clear. Finally, the respondent relied on letters from two other doctors, Dr. Schneider and Dr. O’Connor, who at different times had seen the respondent, and whose diagnoses tended to support the theory of nerve root damage.

32In my view, there was sufficient evidence upon which a properly instructed jury could reasonably conclude that the appellant’s negligence caused the respondent’s injury and, accordingly, I would not interfere with the jury’s finding on causation.

(b) The Trial Judge’s Charge to the Jury

33The appellant raises a number of complaints about the trial judge’s charge. The first is general in nature and relates to the overall adequacy of the charge. The appellant says that the charge was unbalanced, unfairly favouring the respondent, that it was confusing and that it failed to properly set out the issues and the evidence. Read as a whole, the appellant says that the charge did not provide an adequate basis to enable the jury to reach a fair and just decision.

34A new trial in a civil jury case should not be ordered unless the interest of justice plainly requires that to be done. See Brochu v. Pond (2002), 62 O.R. (3d) 722 (C.A.); Mizzi v. Hopkins, [2003] O.J. No. 1671 (C.A.). Not all errors made by a trial judge in charging a jury will lead to a new trial. The question is whether the errors, which may include omissions, deprived the party of a fair trial. In determining whether the trial has been fair, an appeal court should look at the charge in the context of the entire trial and ask if the jury would have understood the issues of fact, the relevant legal principles, how the facts related to the law and the positions of the parties. A new trial will only be ordered when the appeal court is satisfied that the trial judge’s errors have caused a substantial wrong or miscarriage of justice.

35This was not a particularly difficult trial. The issues on liability were straightforward: did the defendant’s conduct fall below the standard of care and, if so, did that conduct cause the plaintiff’s injury?

36In addition, the evidence was not complicated. The conflict between the respondent’s and the appellant’s evidence was apparent and easily understood. The difference in the parties’ positions as to what caused the respondent’s injury was also clear. There were two choices – neural damage caused by the spinal injection or meralgia paresthica. There was evidence that pointed to each.

37At trial, both parties were represented by experienced counsel who in their closing addresses, clearly set out the issues, their positions and the evidence relied upon in support of those positions.

38The trial judge’s charge properly identified the issues, and the question left with the jury correctly addressed the issues of negligence and causation. The jury’s answer to that question indicates that they understood the issues.

39The trial judge’s charge contained some errors. On a few occasions, he misstated the evidence and on one instance he misstated a legal principle. I will deal with these misstatements below. In addition, I think it is fair to say that the trial judge’s review of the evidence may have led the jury to believe that he was sympathetic to the respondent’s version of events, although he does not specifically say that was the case. That said, the trial judge was careful to repeat on several occasions, that it was the jury’s view of the facts, not his, that should govern their decision.

40I have read the charge carefully and I am not satisfied that the overall tenor of the trial judge’s charge was unfair or that it resulted in a miscarriage of justice. As I have said above, there was an evidentiary base to support the jury’s verdict.

41Although I am not sure much turns on it, it is interesting to note that at the conclusion of the charge, both counsel raised objections. Indeed, respondent’s counsel (not Mr. Pape) took strong, albeit somewhat overstated, exception to the charge saying that it was fatally flawed. His primary concerns related to matters not in issue on this appeal, the standard of care and damages. The appellant’s counsel also objected raising many of the same specific issues that are now raised on this appeal. After hearing the objections, the trial judge did not recharge the jury.

42Let me then turn to the more significant, specific complaints raised by the appellant about the trial judge’s charge.

43The first relates to three misstatements of the evidence. In summarizing the appellant’s evidence, the trial judge incorrectly said that the appellant testified that when administering an anaesthetic, he is always talking to the patient in order to avoid meralgia paresthica. In fact, the appellant’s evidence was that his concern was paresthesia. Indeed, it was the appellant’s position that the condition of meralgia paresthica cannot be caused by a spinal anaesthetic.

44I am satisfied that the jury would not have been misled by this slip by the trial judge. The appellant’s position that the respondent suffered from meralgia paresthica and that that condition was unrelated to a spinal anaesthetic was perfectly clear from the evidence, the addresses and indeed, from the charge read as a whole.

45Next, when describing the surgery in his charge, the trial judge said, “Ms. Caza, you will recall, complained”.

46Of course, there was a dispute whether she did complain or not. The appellant argued that this statement could have misled the jury. I disagree. The evidence, the addresses and the balance of the charge made it plain that the jury had to decide whether the respondent complained as she testified or whether she did not as the appellant testified.

47Finally, the trial judge said to the jury when referring to the spinal anaesthetic:

You may ask yourselves why the fourth insertion then, while she was sitting, was not noted.

48In fact, the appellant had made a note of the fourth attempt. Earlier in his charge, the trial judge had flagged the issue of the appellant’s note, directed the jury to look at it and to draw their own conclusion about it. Again, I am satisfied that the jury would not have been misled.

49The trial judge’s factual misstatements set out above were, in my view, minor in nature and were adequately addressed by the trial judge’s direction to the jury that they rely on their own recollections and assessment of the evidence, not his.

50Next, the appellant argues the trial judge improperly communicated to the jury that the appellant was insured. In his charge, the trial judge referred to Dr. Skjenna, a defence witness, as follows:

He provides medical evaluations and functional capacity evaluations for business and industry and insurance companies.

51When being qualified as an expert, in his examination-in-chief, Dr. Skjenna made reference to his insurance work and was cross-examined about it. There was no objection to this evidence. The reference in the charge merely repeated what he had said about his qualifications and did not highlight the insurance aspect. There was no objection to this part of the charge. I see no merit to this complaint.

52Next, the appellant complains about the trial judge’s direction on the law of causation. At one point in his charge, the trial judge said:

If you find that the conduct of Dr. Casselman was negligent, and that the negligent conduct more likely than not increased the risk of harm to Louanne, then I suggest that you can – you may infer that the spinal caused the injury.

53The reference to increasing the risk of harm was an error. However, immediately after this error, the trial judge correctly set out the need to show that the spinal anaesthetic caused the injury. Indeed, at several points throughout the charge, the trial judge instructed the jury correctly on the law of causation, clearly setting out the requirement that the plaintiff prove that the defendant’s negligence was the cause of the injury. On one occasion, he referred to the need to prove proximate cause and pointed out that proximate cause is the cause that produces the injury and without which the result would not have happened.

54Read as a whole, the charge fairly set out the law on causation. In my view, the impugned passage does not warrant interference by this court.

55Finally, the appellant argues that the trial judge erroneously referred to opinions contained in the reports of two doctors relied upon by the respondent for proof of the truth of those opinions.

56The manner in which those reports were treated at trial is important to a discussion of this issue. The respondent did not serve any notices under the Evidence Act, R.S.O. 1990, c. E. 23 prior to trial. The respondent prepared a brief containing her medical records which included the two reports in question. At the beginning of the trial, submissions were made about the evidentiary basis upon which these reports were being tendered. The respondent’s counsel indicated that they were being tendered as business records under s. 35 of the Evidence Act.

57The appellant’s counsel pointed out the two reports in issue contained medical opinions and that the respondent was attempting to treat these reports as expert reports under s. 52 of the Evidence Act. He further submitted that if they were being tendered as such, the doctors must be produced for cross-examination at least with respect to the opinions in the reports.

58It was agreed that the brief of documents would be entered and that the two reports would be treated as business records. It seems to be implicit in this agreement that the two reports would be used only to prove the history of treatment and not as proof of the truth of the opinions. The two doctors in question were not called as witnesses. However, as the trial progressed, the parties did not treat the reports of these two doctors as had been agreed upon at the outset. For example, the appellant called Dr. Kroneberg, an expert in anaesthesiology, who testified that he relied upon these reports in forming the opinions that he expressed at trial. The respondent’s counsel cross-examined Dr. Kroneberg at length about these reports. There was no objection.

59Moreover, in his address to the jury, counsel for the appellant implicitly accepted that the opinions in the reports were in evidence. He referred to the diagnoses in the reports which supported the respondent’s theory on causation and attempted to distinguish them. Finally, appellant’s counsel did not object to the trial judge’s references in his charge to the opinions in the two reports.

60I am satisfied that the arrangement made at the beginning of trial, with respect to how these reports would be treated, changed and that the trial judge made no error in referring to the opinions in the reports in his charge.

61The appellant’s remaining objections to the trial judge’s charge are not such that, even if valid, would warrant interference by this court.

(c) The Jury’s Question

62During the course of its deliberations, the jury asked the following question: “Can there be causation without negligence?”

63After hearing submissions, the trial judge answered the question by saying:

Now in the context of negligence cases, the plaintiff must prove, number one, that there was negligence on the part of the defendant, that there was an injury and that the negligence caused that injury. Like, there’s a cause and effect for everything, but we’re talking about the law of negligence now, so the simple answer, “Can there be causation without negligence?” The answer is no. In the context of the law of negligence, first, there must be negligence proven, so you just have it upside down here.

64The appellant argues that the question did not make sense and that it showed that the jury did not understand the relationship between negligence and causation. Further, the appellant says that the trial judge should have answered by saying, “Yes, this injury could be caused without negligence”.

65In my view, it is not a useful exercise to speculate what lay behind the jury’s question. The trial judge’s answer was proper. He accurately set out the framework for analyzing the issues in a negligence case. Even if the jury had been confused about how to approach those issues, the trial judge’s answer made it clear how they should go about their task. Moreover, when the jury did deliver its verdict, their answer to the first question demonstrated that they understood the requirement that the negligence of the appellant must have caused the respondent’s injuries.

66I see no merit to this ground of appeal.

Disposition

67Accordingly, I would dismiss the appeal with costs. I would fix the respondent’s costs on a partial indemnity basis in the amount of $25,000, inclusive of disbursements and GST.